Adam Mossoff and Jeffrey Tucker, two of the leading lights on opposite sides of the understanding of intellectual property rights, square off in print to make their case.
Patents are NOT enforceable property rights, says Tucker.
If patents for inventions were part of the free market, to make and sustain them would not require legislation, constitutions, bureaucracies, filings, armies of attorneys, and years of litigation. They would exist in the same way regular property rights exist.
Apparently Jeffrey has never noticed the laws, bureaucracies, filings and lawyers that underpin the title deeds to his house—or the years of litigation sometimes required to renovate it. And despite invoking his name, he has failed to notice that Ludwig Von Mises was not an opponent of intellectual property*, and fails to understand (as Mossoff explains) “that property rights are not fundamentally justified as a solution to disputes over ‘scarce’ goods.”
To begin the moral justification for property rights from the economic concept of scarcity leaves unanswered the questions, “Why is producing values morally justified” and “Whence do values come?” Of course, property is a moral standard for resolving disputes, but this is only a logical corollary of the moral justification of property rights: The fruits of productive labour should be secured to their creators.
Mossoff also points out the mistake made by
[s]ome libertarians [who] assert that historically patents were statutory (monopoly) grants that were distinguished from “common law” court decisions that secured property rights in land, but this is myth masquerading as history (see here and here). We should reject it for the same reason we reject historical myths like the “robber barons,” because each uses a false account to bootstrap a normative argument. In fact, in the early American republic, courts secured patents as fundamental property rights: Judges created and applied to patents the same legal doctrines used to secure real estate, expansively protected patents, and provided constitutional protections to patents (see here, here and here).
They were right to do so.
At root, the justification for property rights is a justification for all types of property rights, such as farms, buildings, factories, oil and gas, radio spectrum, corporations, and inventions, among others. All “property” arises from the fact that one must produce the values required for a flourishing human life. (Here, “value” is not an economic concept, it is a moral concept, referring to those things a person produces to live a flourishing life.) Thus, the “right to property” defines the sphere of freedom necessary to create, use, and dispose of these values… [T]he genius and success of Anglo-American property law is that it recognized that property rights secure values, not physical objects. American courts have long recognized that “property ... may be violated without the physical taking of property” given any act that “destroys it or its value.” (In re Jacobs, 98 N.Y. 98, 105 (1885).) This is the meaning of the natural rights metaphor that property rights secure the fruits—i.e., the use and profits—of one’s labours.
With this understanding, it’s possible to understand his main point:
All property is fundamentally intellectual property, because the human mind is the ultimate root of the values we produce to live flourishing lives—and all of these values are justly secured as property rights to their creators… All property rights secure, in the words of [Ayn] Rand, “a man’s right to the product of his mind.”
That, in nutshell, is the fundamental basis of all property, from rights in water, chattels, land, spectrum, corporations and credit right through to rights in inventions and compositions.
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* Mises points out that without copyright and patent protection, musicians, authors, and inventors are in the position of having to bear all the costs of production and invention while the benefits go to others.