[785] in libertarians
Re: Intellectual property rights
daemon@ATHENA.MIT.EDU (Nick Davis)
Tue Feb 28 12:18:23 1995
From: Nick Davis <94728860@mmu.ac.uk>
To: libertarians@MIT.EDU
Date: Tue, 28 Feb 1995 17:09:06 GMT
Ramie Stata's first posting included inter alia:
> *** Property rights
>
> I see trademarks, copyrights, and patents as protection based on
> property rights. What deserves property-right protection? The
> essential characteristics is that property contributes to human
> survival and that it requires effort to acquire, use, and/or maintain.
> My basic thesis is that existents (tangible or not) with these
> characteristics deserve property-right protection unless there are
> overriding considerations.
>
He continued to draw a distinction between Trademarks and copyrights
on the one hand where he sees i.p. rights as being legitimate and
Patents on the other, where such rights are not legitimate.
But this is probably an artificial distinction.
In terms of copyrights, he suggests that the idea itself cannot be
"protected", whereas the expression of the idea can be. Thus while
in his view it is wrong to photocopy Atlas Shrugged from cover to
cover, it is legitimate to use the idea of a strike of those who
produce/create.
But cannot one devise a similar distinction within patents. For
example, one could argue that a *means* of curing a disease by, say,
altering a particular chromosome within the human body to cause (or
prevent) a particular reaction is the *idea* or *knowledge* which
cannot be protected, while the actual combination of chemicals which
are designed to actually do the job is the *expression of the idea*.
I thus cannot see why Raymie Stata can justify copyrights but not
patents. It seems to me that one cannot distinguish between the two.
Those who support the existence of i.p. rights (of any kind) face
problems.
1. Are they simply trying to use some arbitrary power (i.e.
the intiation of force) to stifle competition?
2. Further, are they causing harm because someone else may make
better use of their invention than they can?
I am unconvinced by argument 2 since I am not a utilitarian,
rights come first, in any event, and the problem of knowledge surely
means that no one individual can fortell the best use of an
invention. Or is that the very point, that by protecting
patents & copyrights, we are not allowing the market to determine how
a product can most effectively be used (and hence its true value)?
BUt this is answered (I think) by Stata's distinction between an idea
(which cannot be protected) and the expression of it (which can).
But those who do not support i.p. rights also face questions:
Why should somebody who spends some time creating something
tangible be allowed to protect it from others, while those who my
spend their lifetimes working on a theory may not?
Put another way, the problem is this. If the inventor of an idea is
not allowed to obtain in some way the proceeds of her idea, either by
way of royalties or by selling the idea (in advance sometimes) to
another, then how is she supposed to exist in the meantime.
In Rand's terms, without Roark Courtland would not have existed. His
idea made it possible. Is it right that once he had created the
idea, others can say "thanks very much, chum" and go off and build to
his specification. Don't forget what it was Roark did, he solved the
problem of how to build cheap, useful accomodation. This is what
I am talking about here - the idea which we have said cannot be
protected - and not the actual physical manifestation of his housing
scheme (which we have said can be protected).
All that we have heard is that an idea is *knowledge* which should
not be protected as it should be available.
This takes me right back to where I was in my first entry. Am I
acting immorally (as opposed to illegally) by photocopying half of a
book?
The contractual argument is attractive, but, does not answer the
problem. A library buys a book from X under an agreement that no
more than 10% of it may be copied, and that except only for
individual private study. Firm contract between library and X. A
Student contracts with library to borrow books (and not to breach
copyright restrictions). The student does breach the restrictions.
X cannot sue the library, after all, they have done all within their
power to stop such an eventuality. And X has no contract with the
student.
I am sorry that this posting has rambled slightly. It's intention
was to argue that:
1. Stata's distinction between copyrights and patents is flawed;
2. the distinction between an idea and its physical or textual
manifestation may be a judgment made solely on utilitarian
grounds;
3. contact law does not solve all the problems.
NIck.
