Friend or Foe? Neither, or maybe both.
A good place to start in a discussion of intellectual property is Article I, Section 8 of the Constitution, since it is the basis for intellectual property (IP) laws in the United States. It reads:
The assignment for this post was to “Make your own case for and/or against Intellectual Property as a legally protected right.” My position aligns fairly closely with the original copyright clause in the Constitution. I think IP should be a legally protected right–but the intent must be to promote the progress of science and useful arts, and these protections should remain only for a limited time. I argue in favor of limited intellectual privilege in place of a strict conceptualization of intellectual property.
The Misnomer of Intellectual “Property”
According to Kinsella, IP “covers several types of legally recognized rights arising from some type of intellectual creativity, or that are otherwise related to ideas. IP rights are rights to intangible things—to ideas, as expressed (copyrights) or as embodied in a practical implementation (patents).” Intellectual property rights include patents, copyright, industrial design rights, plant varieties, trademark, trade dress, and trade secrets.
Many argue that intellectual “property” isn’t an accurate term. Property rights are an economic necessity designed to address the scarcity of resources. For example, if I own a particular cow, that prevents you from owning that cow. The resource is finite. In this way, “property” is rivalrous. Intellectual “property,” on the other hand, functions differently– it is non-rivalrous, and “It is possible for someone to teach a work of the mind to another without unlearning it himself” (according to Lawrence Lessig).I can own a copy of a software program without having to take it away from you. There is no “natural scarcity” in intellectual property.
Consequently, many have proposed the use of different terms to more accurately capture the intellectual property debate. Out of the list of proposed terms compiled here, I’m inclined to agree with the term “intellectual privilege,” since I believe it more accurately captures this rivalrous/non-rivalrous distinction.
The Proper Scope of IP
I observed that many anti-IP rights thinkers support their position by quoting U.S. Founding Fathers, particularly Jefferson, Madison, and Franklin (like on p. 32 here, and also here). For example, some point out that Benjamin Franklin, obviously a pre-eminent inventor, never once filed for a patent. Franklin praised open knowledge:
That we enjoy great Advantages from the Inventions of Others…we should be glad of an Opportunity to serve others by any Invention of ours, and this we should do freely and generously.
So, this seems to present a contradiction. Men like Franklin were influential in the writing of Article I, Section 8, clause 8 (either Ben Franklin suggested to Madison that the clause be added, or Jefferson and Madison discussed the clause in a series of letters). So why, then, would Madison, Jefferson, and Franklin accept an IP provision in the Constitution if they felt strongly about open knowledge? They understood the benefits of intellectual privilege and wanted to ensure its place in their new government.
This audio clip offers a long but interesting discussion of Ben Franklin and intellectual property by Lewis Hyde, professor at Kenyon College-
Hyde is also quoted here, explaining that,
Like many of the founders of this country, Franklin didn’t really see copy or patent rights as “rights”… He saw them as temporary monopoly privileges, designed to encourage writers and inventors to produce things that would ultimately accrue to the common good. To the extent that he supported these sort of monopolies, it was to coax the best out of people.
In reference to copyright law, Madison also wrote:
Monopolies tho’ in certain cases useful ought to be granted with caution, and guarded with strictness against abuse. The Constitution of the U.S. has limited them to two cases, the authors of Books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withhold from public use. There can be no just objection to a temporary monopoly in these cases: but it ought to be temporary, because under that limitation a sufficient recompense and encouragement may be given.
Thus, even though the Founding Fathers believed in open knowledge, they argued we should have limited IP for both moral reasons and financial reasons. Out of all of the objectives of IP listed here, and “debunked” here, I found the morality/fairness objective and the financial incentives objective of IP to be the most compelling.
Intellectual Privilege and Fairness
According to Locke, every person has a natural right over the labor/products that he or she produces. Appropriating the works of their hands is unjust and equivalent to a violation of themselves. If we want to look at even more historical texts, an old Biblical proverb states, “The laborer is worthy of his wages.” The person who does the work, in other words, should be the one to benefit.
Many who argue against IP claim that it primarily supports the elites; it helps large corporations make money by copyrighting anything and everything. However, I think IP, properly crafted, can also protect the individual from losing all the benefits of his or her individual labor to the elite or powerful.
Let’s say you write a great book and publish it with a small company. A massive publishing company republishes your exact book in a cheaper copy and under a different author name, and consequently no one buys your version. You spent 6 years of your life working on this book, and you get no money and no credit; the massive company gets all it all because they have power and resources and you do not. Consequently, IP protections have the potential to protect the little guy (you) from the elites; it has the potential to make sure that the “laborer” is the one who gets the wages.
Lessig argues that IP is non-rivalrous and thus should not be treated like rivalrous property, and I agree, these are two separate categories and we shouldn’t treat them as identical. However, while ideas are an infinite resource (rather than a scarce resource), the tangible benefits proffered by those ideas can be finite. Someone is going to profit from a great work of art or an invention or a new drug, and those benefits certainly are finite. Ideally, IP laws make sure that the person who bears the burden of production or creation is the person who reaps the benefits (the person who gets paid). A moral distribution of the costs and benefits in a society sets up a “fair playing field” for economic activity.
IP Creates Financial Incentives
One of the most common arguments in favor of IP protections is that, without IP, no one would have an incentive to invent. If they are not guaranteed the fruits of their labor, they would not work hard or be creative. For example, for every new drug approved by the FDA, it takes 5,000 to 10,000 experimental drugs, 10-15 years of research and an average of $1.2 billion. What motivation would companies have to devote these amounts of resources to developing drugs without IP protections, without some assurance that they will have the opportunity to recoup the costs of production at the end of the arduous development process?
(Side note… I hesitate to bring up this example because pharmaceutical companies can/do abuse the patent system in terms of choosing profit over protecting the public good, but, I digress. That discussion is outside the scope of this post).
As discussed here:
An inventor has a natural right to reasonable compensation for his efforts, but does not have any right to hoard his learning if such reasonable compensation is available. The Federalist asserts that the rights of inventors and authors stand on the same logical premises.
Returning to Article I, Section 8, the whole purpose of IP in the first place is to “promote progress.” Limited IP protections can promote progress by providing a guarantee for a return on investment.
IP: Intellectual Privilege
So why do I like intellectual privilege instead of property? IP, properly construed, balances two competing demands: the privileges of the creator, and the well-being of society. Consequently, I think IP should not be “absolute protection,” nor should it guarantee creators the right to capture the full social value of their inventions. Doing that favors creator or inventor, and fails to appropriately balance the competing demand of the public good.
Article I, Section 8 explains that IP protections should exist “for a limited time.” Ben Franklin argued for short-term IP rights so inventors/creators don’t get the rug pulled out from under them as soon as they invent something, but not so long as to stifle innovation or hinder the public good. I think the term “intellectual privilege” encourages us to consider this type of balance in IP. The term “intellectual privilege” was coined by law professor Tom Bell. He explains the benefit of this term:
We face a choice between two ways of thinking about, and talking about, copyright: As an intellectual property that authors and their assigns own, or as an intellectual privilege that they merely hold. Perhaps no label can fully capture the unique and protean nature of copyright. Recognizing it as form of intellectual privilege would, however, help to keep copyright within its proper legal limits.
As Bell explains, if we reframe”copyright” to “copyprivilege,” and “owner” to “holder,” this loosens the grip on IP, and encourages us to “[rebalance] the public choice pressures that drive copyright policy.”
Sometimes we assume that if protecting IP promotes progress, more protections mean more progress. Or, we assume that if IP stifles creativity, we should get rid of it altogether. But I think that usually good policies aren’t found at the extreme of either end of the spectrum. Intellectual privilege that provides limited protections for a short period of time in specific circumstances offers us an opportunity to reward the hard of work of the laborer yet still protect the public good.