The spirit of copyright and patent laws means to reward labor rather than simply promote the useful arts. For example, one can hold a patent without ever using it, and register a literary work for copy protection without ever publishing it. This suggests that there is an underlying understanding that IP is rewarded because it should be, not simply to make sure that there is more of it around for the public good.”
- Sonia Arrison, writing in ‘The Legitimacy of Intellectual Property’
25 comments:
End of the day, intellectual property rights are created rights which are very difficult to defend on any solid philosophical basis. These sort of hairy fairy "definitions" or "statements of principle" only assist to muddle and confuse.
Actually, they're not difficult to defend at all. At root, intellectual property rights are simply a recognition that if or when you bring a new value into existence, you have some rights in that new value.
That argument depends on what you mean by value.
LGM
don't software patents stifle competition in the software industry?
If somebody came up with the cure for aids, every aids infected person would want it
What if the person who invented it said I am not going to release it until I get what I want.
This does the same as a patent - he is protecting his intellectual property until such a time as he can get what its worth to him
He could not be forced to divulge the cure (could he?)
By witholding his cure he is doing the same as having a patent on something, but not developing or releasing it.
It is his right to do so because it is his property
Problem is that "property" to an idea can only be truly restricted by not disclosing it, while it can not have any objective value (whatever the definition of value) until it is disclosed. Hence the concept of value defeats that of an absolute right to an idea.
What can be protected against force or fraud is the physical manifestation of the idea, for instance through the concept of trade marks (as legislated) or common law concepts (e.g. passing off). Given the practical problems with that sort of protection, and given the increased ease to copy many ideas and their manifestation, there will simply have to be an acceptance that some ideas cannot be easily turned into value any more. Perhaps a pity to some, but that's progress, after all there are many activities not worth undertaking anymore.
The solution to the problem is therefore simple: abandon the whole concept of patents and copyright and improve the system of redress against force and fraud.
@LGM: "That argument depends on what you mean by value."
A childish sophism.
The stuff that sustains human life has to be created--property has to be created--wealth has to be created. (This represents new value.) All the wealth in the world that now exists in the world had to be created. The very act of creating new wealth brings it into a property relationship with the creator.
When we create new wealth, we create new values. Those new values have an owner.
“Individuals do not possess property rights simply because material goods are part of what life requires. The other essential leg of the case stems from the origin of goods’ value.”
- Tara Smith, 'Moral Rights & Political Freedom'
“The source of the goods-character of things is ultimately within us. Goods derive their character as goods by virtue of their ability to benefit human beings.”
- George Reisman, ‘Wealth & Goods,’ in Capitalism
“The power to rearrange the combinations of natural elements is the only creative power man possesses. It is an enormous and glorious power—and it is the only meaning of the concept ‘creative.’ ‘Creation’ does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. ‘Creation’ means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before.”
- Ayn Rand, ‘The Metaphysical Versus the Man-Made'
This is how new value is created. The creation brings the creator into a property relationship with the new 'goods.'
"“According to the entrepreneurial model [of property rights], it is the judgment—no small matter in human affairs where instincts play hardly any role—that fixes something as possessing (potential) value (to oneself or others); and therefore the making of this judgment and acting on it—the alertness and attentiveness of it all—is what earns oneself the status of a property holder."
- Tibor Machan, ‘The Right to Private Property'
@Bez: Try re-wording that to see how absurd it sounds: "Problem is that property to goods can only be truly restricted by not letting burglars steal them."
@Mo: "Don't software patents stifle competition in the software industry?
You have hard evidence? Or just gossip. In any case, "IP is rewarded because it should be, not simply to make sure that there is more of it around for the public good."
Come on Peter, you're twisting words again, as always using the famous Rand tactic of the straw man argument.
If you read my comment properly you'll see that I'm saying is that action is the basis of property, not some weird idea of "value creation".
Coincidentally the Mises Institute put out a paper today arguing the same thing: http://libertarianpapers.org/articles/2010/lp-2-11.pdf
@BEz: I'm sorry if you think explaining to you the meaning of your words is twisting them.
And I don't see anywhere in your comment any argument that action is the basis of property, or what is so "weird" about value creation, but I do see an assertion that since protecting rights is "difficult" we should just give it up.
Anyway, I will look at the paper, though not without much hope, given its source, and since a cursory once-over suggests it's just a materialist apologia for anarchism.
PC
Childish? You know better than that.
If my point was mere childish sophism you'd not have required elaboration with half a dozen quotes and links in the attempt to respond. Quit the smearing and just deal with the matter at hand (assuming you want to be taken seriously).
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What "value" and "new value" actually represents is one of the areas of dispute between pro-IP Objectivists, anti-IP Libertarians and others. As such, it is one of the important topics that needs to be investigated thoroughly, clarified with precision and validated with certainty (assuming the case for IP as property IS to be properly made and validated). This is not some trivial undertaking which can be simply waved into being.
LGM
Pete, I don't think you need to explain my own words to me, but you may want to look at your own double negatives there.
To assist, I understand "action" in its legal sense, i.e. an assertion/protection of a right, but I'd hoped that was clear from the context anyway.
Rand and others seem to overlook the fundamental principle of the letters patent.
It is not a grant. It is a bargain struck for mutual benefit.
The state grants a limited period of monopoly of the patent IN RETURN FOR PUBLISHING the patent – hence letters patent, meaning open to the public.
Consequently anyone can read the patent and is encouraged to break it or get around it or develop and superior invention.
This is why patents stimulate innovation.
This is how Queen Elizabeth the first turned England from a technological backwater to the leading industrial power of Europe. She told the Hugenots and other guild members being persecuted in Europe that they could come to England and they would have a monopoly over their crafts provided they made their trade secrets public.
BRilliant.
Patents also solve the free rider problem.
Regardless of any theoretical objections – they work.
Duing the war the US government repealed all the German optical patents so that US companies could benefit in their war effort. No one took them up because everyone could take them up.
Just curious. Can one government take another one to court for technology theft by state espionage activities? If not, then why not? During the cold war, both the West & the East were stealing each others technology to either reproduce or to improve. This technology espionage is still taking place today, such as China which is very aggressive in its effort to steal military technology from the West over the last decade or so. This is a clear violation of IPs rights.
Falafulu
I do not know the real world answer to your question.
However, most jurisdictions make provision for the nullification of patents within their territory if required by national emergency or if the patent is not being worked. (Hence "suppression of patents" is actually a myth, for this and other reasons.
@Owen, you say: "Regardless of any theoretical objections – [patents] work."
Yes they do.
And they work (a point of Rand's that you have overlooked) because, when properly defined, the moral is the practical.
PC
I did not overlook that point of Rand's because I made no attempt to cover or repeat her arguments.
However, I have not found recognition of the deal struck between the State and the patentee in any of the theoretical debates. I might say that once you start working with venture capital and intellectual property you are soon made highly aware of the deal.
I note too that Rand argues in this piece that copyright dies with the owner of the right. Actually in most jurisdictions (and they all have their own rules) the copyright typically extends ten years or so beyond death. And the US government keeps extending Disney's copyrights into an eternal afterlife.
I strongly endorse Rand's fundamental premise about the value of the mind. I keep shocking the planners by making submissions that there is no such thing as productive land that must be protected from human use or changes in use. After all it is only the human mind that makes the land productive. They confuse fertility with productive which means they know nothing about growing vineyards, olives or especially truffles.
The quote of the day makes another common error when it says:
"For example, one can hold a patent without ever using it, ... "
Well, you can, but don't be surprised if the State cancels it for lack of use if it decides other people are lined up to use it. The vast majority of patents never make a cracker because they have no market.
But if you do find the way to convert commercials into oil and decide you prefer commercials don't be surprise if the State cancels your monopoly and gives the patent to someone else.
Another fine point.
Trademarks are the most valuable item of intellectual property if properly managed.
The three Golden Arches of MacDonalds are worth more than many nation states and that trademark, like any trademark, lasts foreever as long as you keep working it and paying the renewal fees.
I used to advise my clients that a patent provides the short term monopoly that shelters you a little while you develop your trademark. By the time the patent expires the Trademark should be worth more than the patent.
Owen is correct.
The patent is a grant of limited commercial monopoly awarded by the government. It is not absolute.
On the patent document there is not mention of owner or ownership. The names that appear are:
Jurisdiction (that is, which government made award or grant)
Inventor name
Applicant
The applicant is the party that is awarded the limited monopoly. They do not "own" a patent in the sense that regular property (such as land or a car say) is able to be owned. The award is conditional. Further it must be prosecuted and defended by the applicant at the applicant's cost (in Court, if necessary).
If a patent applicant fails to make best endeavours to exploit the patent, then the applicant may be required to grant a license to other parties (which may include the government) or in some circumstances the patent may be extinguished.
Assuming the applicant sees his patent application successfully through the prosecution and on to grant (which can take many years from original filing and cost hundreds of thousands of dollars), then there is still no guarantee that it can't be withdrawn as the result of a court action or patent office decision.
The final determination of validity of a patent is by the ruling of a judge. The patent office examiner's decision that an application should be granted is an opinion- nothing more.
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Here is a question for all the bush patent attornies among you. Who has copyright for the patent document?
LGM
@LGM: Well, if Owen is correct, you can't be. You say it is a grant; Owen says it's not a grant, it's a monopoly.
It's actually neither. What it is is a recognition of right.
1) Patents are not a monopoly, since they do not represent aninitiation of force. What they are is a recognition that the government will stand by to protect a property right created by invention, no less than they would any other property right. The inventor's creation is his by virtue of the fact that he brought it into the world, just as much as a farmer's crop is his because he brought that into the world.
2) In the time of Elizabeth I, however, a patent actually was a royal grant for monopoly privileges--just as Owen says. But over the course of 200 years or so, from 1600-1800, it came to represent "a legal right obtained by an inventor providing for exclusive control over the production ansd sale of his mechancial or scientific invention." [Mossoff, A.. 'Rethinking the Development of Patents: An Intelletual History, 1550-1800']
It involved a change from "viewing a patent as a contract between the crown and the patentee to viewing it as a 'social contract' between the patentee and society" [Walterscheid, E., 'The Early Evolution of the US Patent Law: Antecedents,' 1995], resulting in the view made plain by Harold Fox, i.e., that "the origin of this type of property is in production and is based upon the theory that every man is entitled to the fruits of his own labour." [Fox, H., 'Monopolies & Patents,' 1947]
As Owen says:
"Patents also solve the free rider problem.
Regardless of any theoretical objections – they work."
Yes, they do. Regardless of the fact that in recent times the US Patent Office has become a rubber stamp rather than a claims checker, they still do.
The moral really is the practical.
PC
Sorry. I didn't make myself very clear. I agree with Owen's comment regarding the patent as a state grant of limited commercial monopoly in return for disclosure and publication. He writes, "The state grants a limited period of monopoly of the patent IN RETURN FOR PUBLISHING the patent – hence letters patent, meaning open to the public." Owen is correct in this and also in mentioning that one can't expect to hold a patent without ever using it. The grant is conditional and may be rescinded should the government and/or court determine to so do.
Unfortunately the patent IS and remains a grant. When the prosecution phase of the patent process is completed, the patent is said to "go to grant." It is then granted (or awarded) by the patent office, a branch of government empowered to examine and grant patents. That is the present arrangement, even in the USA (the USPTO even charges a specific fee for grant).
That you would prefer a patent to be a legal recognition of individual rights is all well and good. Trouble with that view is that in the present circumstances it is misleading. There is not an "owner" of a patent in the Objectivist sense of ownership. There is an "applicant" who may or may not be granted a limited commercial monopoly by the patent office. That grant of priviledge only continues so long as certain specific conditions are met. It can be withdrawn by a court, or by the pleasure of various government branches at any time.
Read a patent document and see whether you can find the terms "owner" or "recognition of individual right" disclosed. Even after the patent goes to grant the parties disclosed on the document as having interest are state, applicant and inventor.
What we may wish the patent to "represent" is not the issue here. The issue is what a patent actually is and what that actually allows.
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BTW if you had serious exposure to the patent system it is unlikely you'd conclude it is practical. It certainly isn't that (unless you have generously deep pockets and a lot of time)- very, very difficult to claim morality, let alone practicality, on the basis of what really exists in this instance.
LGM
The stuff that sustains human life has to be created--property has to be created--wealth has to be created. (This represents new value.) All the wealth in the world that now exists in the world had to be created. The very act of creating new wealth brings it into a property relationship with the creator.
If the creator of every unit of value (i.e., the utility his creation could provide to others) could obtain all of that value for himself -- i.e., if he could determine exactly what his creation was worth to every other person, in money terms, and charge each that amount, thus absolutely maximizing his income...which ISTM would be the perfect Rand-world -- then his creation would have no value to anyone: whatever utility it has is perfectly offset by the cost to obtain it!
In the real world, a trade only occurs if the would-be-customer values the product more than whatever he has to forego to obtain it (and the creator the money more than the product--but generally the product is worth nothing to him personally, even if it's a physical good; an idea even less so). He sells at a fairly fixed price, and only those who value it more than that price actually buy it; he loses the difference between their value and his price, and 100% of the value of all the non-buyers. But any increase in wealth is just the additional value picked up by those buyers: the difference between the cost and the value of the product. In arguing to close the gap, you're for a reduction in wealth creation. The more that becomes free "infrastructure" (ideas on which others can build, without cost), the wealthier "society" becomes.
However, I have not found recognition of the deal struck between the State and the patentee in any of the theoretical debates.
Indeed, the fact that the state has no right to make such a deal forms part of the libertarian argument.
And the US government keeps extending Disney's copyrights into an eternal afterlife.
Maybe they believe the story that Walt Disney was frozen, and don't consider him dead yet :)
if the creator of every unit of value (i.e., the utility his creation could provide to others) could obtain all of that value for himself -- i.e., if he could determine exactly what his creation was worth to every other person, in money terms, and charge each that amount, thus absolutely maximizing his income...which ISTM would be the perfect Rand-world -- then his creation would have no value to anyone: whatever utility it has is perfectly offset by the cost to obtain it!
that makes no sense
In the real world, a trade only occurs if the would-be-customer values the product more than whatever he has to forego to obtain it (and the creator the money more than the product--but generally the product is worth nothing to him personally, even if it's a physical good; an idea even less so). He sells at a fairly fixed price, and only those who value it more than that price actually buy it; he loses the difference between their value and his price, and 100% of the value of all the non-buyers. But any increase in wealth is just the additional value picked up by those buyers: the difference between the cost and the value of the product. In arguing to close the gap, you're for a reduction in wealth creation. The more that becomes free "infrastructure" (ideas on which others can build, without cost), the wealthier "society" becomes.
haha
your asking for a reduction of wealth creation because there would be less incentive to create IP.
that makes no sense
It makes perfect sense. Read it again, and if it still doesn't make sense, take an IQ-booster.
Putting things in money terms, because interpersonal utility comparison is impossible: if something is worth exactly $10 to you, there would be no reason for you to buy it unless it cost less than $10 -- if you pay $10, there's no gain: what you give up is worth the same amount as what you obtain; you have no reason to bother.
In other words, all "wealth creation" comes through what you might call externalities: the extra "free" value you obtain over what you pay.
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