This article is excerpted from the new Acton Institute monograph, The Social Mortgage of Intellectual Property.
One reason why intellectual property in some new technologies may appear to be unlike other forms of property lies in its indefinite replicability—multiplication without diminution.
You and I, and indefinitely many others, each may have access to some item of computer software just as we all may share the ideas in this paper. Each copy is as good as the original. Your having a copy in no way diminishes my use of, or access to, my copy. In contrast, a tangible item of property can be in only one place at a time and may well be diminished by multiple uses. This contrast between tangible and intellectual property has led some to think that intangible items cannot or ought not to be restricted as tangible items are. If you take my pen, I cannot use it, but if you take my idea, I suffer no analogous loss. Thus, it might seem that new technological developments that result in perfect replicability (such as computer software or genetic coding) may render traditional notions and norms of property obsolete.
One philosopher who has raised this, along with several other objections to intellectual property, is Edwin Hettinger. He asks, “Why should one person have the exclusive right to possess and use something which all people could possess and use concurrently? The burden of justification is very much on those who would restrict the maximal use of intellectual objects.”
To this objection we reply: Income from selling one’s product is a form of use; so it is not the case that sharing intellectual property is loss-free to the sharer. While sharing intellectual objects may not involve loss of possession or loss of personal use, the loss of income incident to such sharing is a true and significant loss and not to be dismissed.
Second, Hettinger spells out the puzzle involved in determining what value ought to be ascribed to one’s labor. For instance, market value does not solve the puzzle for two reasons: Market value is “a socially created phenomenon,” and not in any direct sense the product of one’s own labor. Market value results from many factors and not just “the latest contributor,” so that it would seem unfair to reward only this latest contributor with the value of a product, but then how would such value be divvied up? “To what extent individual laborers should be allowed to receive the market value of their products is a question of social policy,” Hetinger argues, “it is not solved by simply insisting on a moral right to the fruits of one’s labor.”
Our response is that, in principle, at least, all predecessor contributors to a product could get their due in a free market (if we understand their due to be determined by the free transactions of willing sellers and buyers, the essence of a free market).
A closely related attempt to justify intellectual property is the argument from desert. The basic idea here is that one deserves to be rewarded for worthwhile labor. To this Hettinger objects that property rights to the results of one’s labor are not necessarily the form that such reward should take. Here, he adduces Lawrence Becker’s counterexample: Parents do not deserve property rights to their children. Even if it could be established, moreover, that property rights should be proportional to the value of one’s labor, this would not justify patents, copyrights, or trade secrecy, in that none of these forms of intellectual property guarantees a reward neither more nor less than one deserves.
We grant that intellectual property rights do not guarantee a just reward. We know of no automatic device that would provide such a guarantee. Nor are such rights “necessarily the form that such reward should take.” Rather, their justification, in our legal system, at least, rests chiefly on the social bargain by which such rights are offered in return for the ultimate enrichment of the public domain. Accordingly, these rights are social constructions rather than natural endowments. To admit this, however, is not to impugn their justice any more than the merely conventional status of traffic laws impugns the justice of traffic fines.
David H. Carey is professor of philosophy at Whitman College in Walla Walla, Washington. The book may be purchased online through the Acton Book Shop.