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Intellectual property is time limited. Copyrights and Patents expire after a set number of years. Why shouldn't intellectual property be held in perpetuity the same way as real property is?

asked Jan 24 '11 at 21:46

c_andrew's gravatar image

c_andrew ♦

edited Jan 26 '11 at 12:58

Greg%20Perkins's gravatar image

Greg Perkins ♦♦

I wrote an article analyzing and addressing the strongest arguments I could find against the legitimacy of intellectual property: "Don't Steal This Article!". In it, I rely heavily on Rand's article, "Patents and Copyrights," and Peikoff's book, Objectivism, explaining the Objectivist position in the context of these critiques of IP -- including a section dedicated to exactly the issue of "why not IP in perpetuity?" It says, in part:

Libertarians opposed to intellectual property see unprincipled arbitrariness in protecting it for some given number of years; for if intellectual property is legitimate, why wouldn't we provide unlimited protection as with material property? But they also note that if there were no time limits, then people would become mired in impossible record-keeping, drained by endless royalties, paralyzed in innovation. In the face of both limited and unlimited protection seeming unprincipled and heinously impractical, they reject intellectual property protection altogether -- and this is further justified in light of their scarcity-based theory of property.

Certainly the practical point about the crushing burden of endless royalties and record-keeping is a useful sign that unlimited patent and copyright protection is a bad idea we should reject. But that alone does not constitute the full case against the idea; we also need to look to the nature of man's life to identify what is wrong with unlimited intellectual property rights. Further, in seeing the trouble there, we can identify what gives rise to the need for time limits in the first place -- and we can identify principles to guide us in the delicate challenge of determining just intellectual property durations which are not arbitrary.

Our starting point is the examination of what would be entailed in owners enjoying both material and intellectual property in perpetuity. First, recall that in discussing wealth as material economic goods we carefully distinguished it from its essential means (ideas, labor). In the present point, this distinction appears again in understanding material property rights as a claim on a specific amount of existing wealth, where intellectual property rights are a claim on limitless potential future wealth in the application of an idea.

Regarding the former, Rand observed that material property "can be left to heirs, but it cannot remain in their effortless possession in perpetuity: the heirs can consume it or must earn its continued possession by their own productive work." Value evaporates if a farmer neglects his land, an apartment owner neglects his building, or the owner of a business neglects its operation. Even a trust-fund baby must manage his investments lest they wither or be lost due to mismanagement -- consider the recurring story of lottery winners who quickly find themselves back where they were before winning. People may enjoy a lucky "leg up" in accumulating wealth, but they must be productive to maintain and grow that value, or suffer its disappearance. That is, they must earn its continued possession by their own productive work. Even under such favorable circumstances, the specific basis in ethics of the right to property -- the cardinal virtue of productiveness -- continues to stand as a broad requirement.

In contrast, intellectual property cannot be so consumed and requires no productive effort on the part of its holder to maintain its value. No work would be demanded of an heir to intellectual property: he may continue to apply the idea to produce wealth, but he could just as well sit back and soak up royalties from others who use the idea to produce wealth. The owner of intellectual property need not earn its continued possession. Seeing the implications of this, Rand commented that if intellectual property were held in perpetuity, "it would lead to the opposite of the very principle on which it is based: it would lead, not to the earned reward of achievement, but to the unearned support of parasitism." That is, a distant heir would effortlessly enjoy a share of the wealth being produced by others who alone are keeping the idea alive, embodying it in new life-serving goods. In the role of mere heir to intellectual property, one could not earn any part of that wealth. This follows from Rand's point that

Intellectual achievement, in fact, cannot be transferred, just as intelligence, ability, or any other personal virtue cannot be transferred. All that can be transferred is the material results of an achievement, in the form of actually produced wealth. By the very nature of the right on which intellectual property is based -- a man's right to the product of his mind -- that right ends with him. He cannot dispose of that which he cannot know or judge: the yet-unproduced, indirect, potential results of his achievement four generations -- or four centuries -- later.

Thus by looking further into the meaning and purpose of property, we see how unlimited protection of intellectual property rights would not be analogous to unlimited material rights protection and would in fact be the very opposite in important ways.

Regarding the delicate challenge of determining specific limits for the protection of various classes of intellectual property, the scope of "fair use," and so on: as with the above issues surrounding intellectual property, legal philosophers must look to politics, ethics, and the nature of man for the appropriate guiding principles to develop just implementations -- not interfering with the freedom of creators to profit by their creations while at the same time not enabling parasites to burden the productive.

(Footnotes and discussion of other issues people see with IP can be found in the the article this was drawn from.)

answered Jan 26 '11 at 00:33

Greg%20Perkins's gravatar image

Greg Perkins ♦♦

Great article!

I've actually been a bit baffled on the distinction between a discovery and an invention. Your article touched on this, but did not allow me to resolve my qualm. Maybe if I get some extra time, I will post a question on this site about it.

My basic qualm lies in the fact that a truth about nature is distinct from knowledge of that truth. So when a scientist makes a new discovery, he is bringing new value in the world that potentially enables the creation of wealth that otherwise would not exist (either directly, or because it enables the creation of a new invention).

(Jan 26 '11 at 01:01) javert ♦ javert's gravatar image

Relatedly to the above comment: An additional reason for my qualm is the following. Isn't an "invention" simply the "discovery" of a method for enabling the production of wealth, in some form? e.g., in the case of the sewing machine (you may be familiar with this if you have read some of Adam Mossoff's work), the inventor discovered how to combine a number of already-known mechanical devices and techniques in a way that allowed mechanical sewing to be accomplished efficiently and effectively.

(Jan 26 '11 at 01:03) javert ♦ javert's gravatar image

Verbalizing my qualm in my prior comments has really helped me clarify my thinking. I think the essense of a proper answer to the points I raised would be to say that a proper definition for "discovery," in this context, refers to acquiring knowledge about metaphysical nature (as distinct from anything man-made); and that a new discovery does not directly enable wealth to be produced (which would justify intellectual property rights). There are a lot more subtleties for me to work out; I'll post a proper question if I end up not being able to work them out.

(Jan 26 '11 at 01:56) javert ♦ javert's gravatar image
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It is a crown-jewel of a society to protect intellectual property rights. It is one of those developments that scream: the ascent of man.

The inventor faces a dilemma. If he keeps his idea to himself, he can't sell it and profit from it. If he sells it, others may copy it and compete with him in producing and selling it. One might imagine a piece-meal solution, in which the inventor sells his product to people who promise to keep the thing hidden and secret and not to make it themselves. That works, but it is quite limiting.

With the institutionalization of patent and copyrights, we do the same thing, but on a society-wide basis. At the front end of the arrangement, the inventor gets sole rights to produce and sell his invention, but on the rear end of the deal, he loses his monopoly on it.

That inventions and new ideas tend, over time, to meld into the culture and technology of a period is one major reason for limiting the duration of IP rights. A valve that was a major innovation in one decade may become one part of a new, more elaborate device in the next one. Also, it becomes much easier to circumvent an invention over time, so the patent rights become more or less meaningless in many cases.

If an inventor wishes to preserve his rights absolute and forever, he can simply keep his idea secret. But the usefulness to all concerned of his bringing it to market is rationally accommodated by our system of temporally limited IP rights.

answered Jan 25 '11 at 00:49

Mindy%20Newton's gravatar image

Mindy Newton ♦

I think your first paragraph makes a great point, but overall, your answer is lacking because there is no reduction of the points you're making back to the underlying principles.

(Jan 26 '11 at 00:16) javert ♦ javert's gravatar image

If you haven't already, I suggest you read Ayn Rand's essay, "Patents and Copyrights."

Other than that, there are no Objectivist works that deal directly with this issue, except a recent webcast by Adam Mossoff, which can be had through the NoodleFood blog (Google it if you're not familiar with it) for $50 (admittedly, a steep price, though I found it to be worth it). I had some misconceptions about property rights (I suspect you may as well, based on your question) that were cleared up by that webcast.

EDIT: Just found out about an excellent article by Greg Perkins, which he posted about elsewhere in this threat; definitely take a look at that.

In addition to giving these references, I will attempt to give an essentialized answer to your question.

The purpose of property (i.e., property rights, or to my understanding, any rights) is to enable man to secure values in a social context. This is really key. This is the guiding principle that you need to apply to derivative questions about property (intellectual or otherwise).

So, for example, even material property rights do not apply indefinitely, as you assume in your question. For example, you cannot rightfully stipulate in your will that your heirs inherit a piece of land under the provision that they must use it for farming, and that they must also require their heirs or anyone they sell the property to, to maintain that restriction. As an additional example, one cannot rightfully retain ownership of a large tract of unimproved (or previously improved, but now abandoned) land, for an indefinite amount of time; that land becomes free for another to claim as his property, if he improves upon it (e.g. building a house, etc.), or has immediate plans to do so.

Moving on to intellectual property: the purpose of intellectual property is to allow the creator to secure a material profit based on the value he has created. Allowing intellectual property to exist in perpetuity, would eventually destroy value, not create it. In fact, intellectual property should be recognized only long enough for the inventor to capitalize on the creation. For example, if I create a new invention (say, a teleportation machine), it's right for me to be able to secure material value from that, but it's not right for my descendants to sit around lazily, not creating value at all, but requiring people to pay $1 million dollars in return for each teleportation machine that they build.

answered Jan 26 '11 at 00:12

javert's gravatar image

javert ♦

edited Jan 26 '11 at 00:52

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Asked: Jan 24 '11 at 21:46

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Last updated: Jan 26 '11 at 12:58