Critically analyse the following statement: “Indeed it might be helpful to rethink the language used to describe IPRS and call them instead intellectual property privileges, which is what they are, and thus remove the possible confusion with human rights.” (the Friends World Committee for Consultation).

Note: One of my duties in the various places where I teach is to show students how to write essays – something most young people are not nowadays taught to do. What I like to do in class is to choose a question at random, discuss possible approaches, and then dictate an answer one paragraph at a time. Some of these answers are very short. Some amount to small dissertations. In this latter case, the students take turns at looking on-line for the information we decide is needed. It they cannot find it, I show them how to change the structure of what has already been written, or to strike out in a new direction.

It is a “writing masterclass” approach that makes use of my own strengths, and is often a welcome alternative to formal teaching. It fills up a long morning session. Everyone learns something, and the more attentive will improve their final grades by at least one step.

Here is an example of the finished product. Do not take it as a statement of personal opinion. It is an answer produced for a specific question, and it bears in mind what a possibly unknown examiner will appreciate, and what can be written to incorporate the sources found in class. SIG

PS – If anyone wants to engage my services as a teacher of these skills, please click on the image to the left. Though they are my niche subjects, Greek and Latin are not my exclusive focus as a teacher. I do much else besides.

PPS – If you are a student, and you have come across this in a frantic last minute search, I advise you not to copy and paste and submit. You will be found out in three clicks of a mouse. Examiners were not born yesterday.

The quotation in the title of this essay is from a letter sent from the Quaker United Nations Office to the Commission on Human Rights of the United Nations, which had invited submissions on whether intellectual property should be considered as a human right. (Commission on Human Rights, 2001, p. 17) The reading list for the present essay allows me to cast debate over what the Quakers said largely as a debate between various kinds of free market libertarian.

In summary, I agree with the Quakers and with those dissenting libertarians who take issue with the concept of intellectual products – defined as copyright, patents, trademarks and the like – as property.

Intellectual Property – A Loaded Concept

Because it has been used so often and for so long, the phrase “intellectual property rights” has been drained of ideological content. It is used simply as a general category for certain kinds of intellectual products. Attempt to see it through fresh eyes, however, and the phrase acquires obvious ideological content. It is a claim that intangible products of the human mind can be and are property. It is an attempt to equate my ownership of the specific arrangement of the words in this essay to my ownership of the computer on which I typed them. As such, it may be seen as an attempt to equate an ownership that hardly anyone disputes of tangible things with an ownership that is often contested of intangible things.

Intellectual Products as Property by Natural Right

Perhaps the most forthright equation of intellectual products with property can be found in the work of the American philosopher Ayn Rand. One of the basic premises of her system is that:

Man’s mind is his basic tool of survival…. To remain alive, he must think. (Rand, 1963, p. 96)

From this, she claims, it follows that:

Patents and copyrights are the legal implementation of the base of all property rights: a man’s right to the product of his mind…. What the patent and copyright laws acknowledge is the paramount role of mental effort in the production of material values: these laws protect the mind’s contribution in its purest form: the origination of an idea. (Rand, 1967, p. 130)

Rand is not an original thinker. She stands broadly within the classical liberal or libertarian tradition, according to which property is an essential human right. She derives much of her natural law thought from Aristotle, as filtered through the works of John Locke. In Chapter V of his Second Treatise of Civil Government (1690), he justifies property as an extension of the right to self-ownership. A person owns “the labour of his body, and the work of his hands.” This being so, whatever he appropriates from an unowned state of nature belongs to him, since “he hath mixed his labour with, and joyned to it something that is his own, and thereby makes it his property.” (Locke, 1690) There is no unowned state of nature in any settled country. However, so long as an original appropriation from this state is passed by sale or gift or inheritance, rather than force or fraud, the title of a present owner is as strong as that of the original appropriator.

Locke appears to have had tangible things in mind for this defence of property rights. But his defence seems to apply much better to intellectual products than to tangible things. (Hughes, 1988, pp. 297-300) The latter can only be presumed to have come down cleanly from their original appropriator: in particular, all real property has been subjected to repeated breaks in title by way of confiscation. Intellectual products, on the other hand, are recent products of the mind. Their original appropriator is still alive, or only recently dead. There can be no argument over title. (Gordon, 1993) Assuming the Lockean defence of property to cover intangible things, here is a right that it is the duty of lawmakers to protect. (Moore, 2012)

Indeed, if we go back to the sources of natural law theory, we see that intangible things were also considered a species of property. According to Gaius, a Roman lawyer of the second century:

[T]hings are divided into corporeal and incorporeal. Corporeal things are tangible things, such as land, a slave, a garment, gold, silver, and countless other things. Incorporeal things are intangible, such as exist in law, for example an inheritance, a usufruct, obligations however contracted. (Drahos & Campbell, 1996, p. 16)

This distinction was taken into English property law, and intellectual products were initially classified as choses in action, carefully distinguished from chattels or real property. Therefore, “[i]ntellectual property rights are incorporeal things, but this came to mean incorporeal rights which relate to abstract objects.” (Drahos & Campbell, 1996, p. 18)

According, then, to this line of thinking, intellectual products are just as much property as tangible things. So far as property is a natural right, so too is intellectual property. “It is a natural extension or concomitant of… self-ownership.” (Mack, 1990)

Intellectual Products as Property on the Grounds of Utility

This natural rights case is rivalled or supplemented by a utilitarian case for equating intellectual products with property. (Fisher, 2001, p. 221) Utilitarians begin from the presumption that laws or policies are legitimate so far as they maximise the wealth or happiness of society. (Palmer, 1989, p. 262) It is assumed that there is a public interest in a regular supply of new and original works of the human mind. Once created, however, such works are what the economists call “public good.” They are “non-rivalrous” and “non-excludable.” No one can be stopped from using them. If one person is using them, another is not prevented from using them. (Croskery, 1993, p. 634)

Now, intellectual products do not create themselves. Music, for example, requires a human composer and human singers or instrumental players. These must be trained, and that costs both time and money. They need and expect to make money. Even if they make more money than they can ever spend – Justin Bieber, for example – their wealth is still an incentive for others to try to imitate their success. Financial reward, then, for the creation of intellectual products is a socially-useful reward. It also pays for all the agents and other middlemen, who certainly would not work except for money.

Keeping with music, but turning to other intellectual products, the technology of music recording is not a “free good.” The digital revolution in recording was made in 1982, when Philips and Sony launched the compact disk. (Shapiro, et al., 2012) This was both an expensive and a risky launch. It was possible that the public would remain happy with tapes and records, and that this new product would not be wanted. The incentive for the developers of the compact disk to take on the development costs and the risk of failure was the prospect of making a lot of money from selling both compact disks and licenses to other companies giving these the right to manufacture them. Without a property right in the new technology – that is, without a patent – it would have been copied for free by other companies, which could then have sold their own disks at low price without any development costs to pay back. Without protection, the developers would never have taken on the costs or the risk of failure.

This utilitarian defence is that the equation of intellectual products with property turns public goods into private goods. This ensures that we have a continuous supply of new and original works of the human mind. (Palmer, 1989, p. 262)

Intellectual Products as Property via Personality

Indeed, however justified, property is an important part of our personal security. It gives us an assured space in which we can operate as we please. Property here is usually taken to include intellectual products. (Soto, 2000, p. 220)

The German philosopher Hegel comes close to this line of reasoning. He defends property as legitimate so far as it expresses characters, feelings, talents and experiences. (Hegel, 1991, p. 128) We need control over both tangible and intangible products in order to actualise our individual potentials. Property allows us to impose our will on the external world. And it gives us the potential for freedom. This freedom allows us to protect our private actions from public inspection and to pursue our own long-term goals in life. According to Jeanne L. Schroeder:

[P]roperty is necessary for the development of one limited aspect of personality that I call “legal subjectivity.” Legal subjectivity is the mere capacity to respect the rule of law – nothing more. This is a precondition to the liberal state which is supposed to be governed by the rule of law, not the rule of men, as the feudal state was. (Schroeder, 2004, p. 1)

Property includes intellectual products. However, Hegel says nothing about the specifics of how property of any kind should be protected. This is a matter of “practical reasoning.” (Schroeder, 2004, p. 2)

Legal Expressions of Intellectual Products as Property

The US Constitution is ambiguous on whether intellectual products should be treated as property. Article 1;8(8) of the American Constitution gives Congress the power

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. (United States, 1788)

This is a utilitarian argument for granting a limited ownership of intellectual products. On the other hand, intellectual products are specifically mentioned here, but are not included in any other section that deals with undeniable property.

However, Protocol 1 of the European Convention on Human Rights and Fundamental Freedoms states that:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. (European Court of Human Rights, 2010, p. 33)

Granted patent rights are judged to fall within the definition of “possessions.” Intellectual products are not recognised in themselves as “possessions,” not in the same way as my computer is a possession in itself. But they do become that once they have been recognised by a grant of protection from a valid authority. (British American Tobacco Ltd. v. The Netherlands, 1995)

Then we have the recognition of a kind of property right in intellectual products in Article 15.l(c) of the International Covenant on Economic, Social and Cultural Rights:

The States Parties to the present Covenant recognize the right of everyone: . . . (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. (United Nations, 1976)

Intellectual Products as Property – Scepticism

We therefore have much philosophical legitimation of intellectual products as property. We also have some high legal expressions of this claim. This being said, the claim is attended by much scepticism. According to F. Machlup and E. Penrose, writing on the history of patents:

[T]hose who started to use the word property in connection with inventions had a very definite purpose in mind they wanted to substitute a word with a respectable connotation, ‘property’, for a word that had an unpleasant ring, ‘privilege’. (Machlup & Penrose, 1950, p. 2)

We come back to the submission of the Quaker United Nations Office:

According to various inputs we have had in our work, IPRs are increasingly used by corporate bodies as part of their asset portfolio and investment protection mechanisms – not as a means of supporting human rights. (Commission on Human Rights, 2001, p. 17)

Is all this talk of intellectual products as property not based on a misconception of what property really is? Whatever may have been honestly said in the past, could it not now be a cynical trick played by some very wealthy corporate interests to justify positions that have no basis in either natural law or utilitarian philosophy, and that may be against the public interest as reasonably conceived?

Can Intellectual Products be Property?

Calling intellectual products intellectual property gives rise to an obvious problem. If I buy an apple, I buy the unlimited right to use that apple as I please. I can eat it. I can throw it away. I can take and publish photographs of it. I can bury its seeds and grow a tree. If I buy a book or a compact disk, I own just the physical medium in which the thing that I really want is contained. The text or music remains the property of someone else, and that someone else has the continued right to determine what I do with it. Most obviously, I cannot make further copies. I certainly cannot sell these.

Nothing wrong with that if it is a condition of sale. Buyers and sellers make all manner of contracts. Land is often sold with restrictive covenants that bind the new owner, and that require the new owner to pass the covenant on to the next owner. But suppose I find a copyright item abandoned in the street, and then comply with all legal requirements to make it mine? The chain of contractual relationship that connects me with the original seller is broken. Yet I am still bound in law by that relationship. Therefore, treating intellectual products as property gives the owner of an intangible thing rights over tangible things owned by unknown numbers of people. Is this what the advocates of property rights such as John Locke had in mind? Is this a reasonable definition of property? The natural answer to this question is that most people do not think it reasonable. Millions of people who would never dream of stealing tangible things see nothing wrong in transferring their compact disks to mp3 files. (Mansell & Steinmueller, 2011, p. 10)

Then there is the strange nature of this “Property.” It exists only in certain kinds of intellectual product. If we call intellectual products property because a creator’s labour has been mixed with it, that means the inventor of a new musical system should have a property right in its use. Instead, the law arbitrarily confines property in music to particular works. The Copyright, Designs and Patents Act 1988 defines a musical work as “a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music.” (CDPA 1988 s. (3)1) This was explained by Mummery LJ as “combining sounds for listening to.” (Sawkins v Hyperion Records Ltd [2005]) The composer Arnold Schoenberg had a property right in the specific works he composed. But he mixed at least as much of his labour in elaborating the twelve tone system in which he composed his mature works. That system was never regarded as his property.

It is the same with patents. Francis Crick and James Watson mixed years of their labour in the discovery of DNA. That gave them no property right in DNA. A company may spend a few months devising a new machine to extract DNA, and it has an enforceable property right in the production of that machine. It is a strange sort of property that relies on arcane and sometimes conflicting definitions of its nature.

A further oddity is that property in intellectual products is limited in time. Let us again take copyright in music. If music is published during the lifetime of its composer, it remains in copyright for seventy years after death. If the music is collaborative, it remains in copyright for seventy years after the death of its last composer. If published after a composer’s death, music remains in copyright for seventy years from date of publication. This an arbitrary term. It was set at fifty years before 1995, and then extended to seventy-five. The Copyright and Duration of Rights in Performances Regulations 2013 have now extended the term for recorded music from fifty to seventy-five years. Though their duration depends on specific circumstances, patents and trademarks have never been for an unlimited period.

These are important oddities. The Lockean defence of property begins from the fact of property as a natural right. It is easily defined. It exists without a state. The State exists to give protection to this pre-existing right. (Locke, 1690) The protection given to intellectual products is best stated as a utilitarian balancing of interests. It is said to be in the public interest for the creators of certain kinds of intellectual products to have protection. It is in the interests of those who use intellectual products to have the freest use of them. The compromise is to give protection for a limited duration. This compromise looks more like the creation of a privilege than the recognition of a right.

Is It Useful to Treat Intellectual Products as Property?

The key assumption behind the utilitarian case for intellectual property rights is that their recognition does serve the public interest. This is a dubious assumption. The libertarian philosopher Murray Rothbard looks at the incentivising effect of patents. Because of the arbitrary bounds drawn between what is protected and what is not:

The patent system then has the… effect  of  artificially  stimulating  research  expenditures  in  the patentable areas, while artificially restricting research in the non-patentable areas. (Rothbard, 2004, p. 658–59)

This is one of the costs of the patent system. Because intellectual products are only protected if they are practical applications, and not theories, research is diverted from theoretical to practical research and development. In addition, there is a tendency for companies to seek patents for defensive purposes – that is, to prevent competition from other companies. This results for sure in fees for patent lawyers, but is only arguably in the public interest. (Kinsella, 2008, p. 23)

Abuses of Intellectual Property Rights

A further point, arising from the discussion above of books and compact disks is that the enforcement of property rights in intellectual products leads to serious violations of other rights. Ejan Mackaay discusses issues connected with Anton Piller orders, which are supposed to enable claimants to discover and seize property in breach on intellectual property rights. (Anton Piller KG v Manufacturing Processes Ltd & Ors [1975]) Instruments like these “intrude into people’s privacy in frightening ways. Inasmuch as they invite such aberration, intellectual rights would seem to be incompatible with property and other fundamental rights. (Mackaay, 1990, pp. 868-69)

To give an example of this “aberration,” the first response of copyright holders to file sharing technologies in the early years of this century was to engage in random and oppressive actions against ordinary people. In America, between 2003 and 2007, 30,000 actions were brought. Most of the defendants were not thieves by any common definition. Many ended in settlements or judgments for petty amounts. The only one brought to full trial was lost. (Kravets, 2009)

Or there is the lobbying pressure of the Hollywood studios, which has extended American copyright in films to ninety-five years. (Masnick, 2012) This provides no reasonable incentive to make new films, but only provides an additional income stream that was unknown till recently.

Or we can move beyond argument between libertarians, to claims that the use of patents by agri-technology companies such as Monsanto are a capitalist attack on the poor. One specific claim is that genetically-modified seeds are sold to farmers with the condition that none of the harvest is to be kept back for replanting, but that new seeds must be bought from the company. Monsanto, in particular, has been aggressive in enforcing these conditions. According to the Indian activist Vandana Shiva:

These IPR monopolies on seeds are also creating a new bondage and dependency for farmers who are getting trapped in debt to pay royalties. This is why 270,000 Indian farmers have committed suicide. (Confino, 2012)

These claims, and others like them, are contested as based on a false understanding of science and law and farming practice. (Porterfield, 2018) However, there is much scepticism outside the circle of dissenting libertarian philosophers about the value of treating intellectual products as property.

Conclusion

As such, the Quakers have a case. I do not share the view of the various libertarians who oppose the whole idea of intellectual property. It seems reasonable that the public interest is served by giving some protections to the creators of intellectual products. But these protections may best be seen as a grant of privilege made in the public interest, and a privilege that may be extended or limited or wholly abolished if such can be shown to be in the public interest.

The IPR Commission, set up by the British Department for International Development, seems to agree:

[W]e prefer to regard IPRS as instruments of public policy which confer economic privileges on individuals solely for the purpose of contributing to the greater public good. The privilege is therefore a means to an end, and not an end in itself. (Commission on Intellectual Property Rights, 2002, p. 6)

So – privilege, not property right.

Bibliography

Acts of Parliament

Copyright and Duration of Rights in Performances Regulations 2013

Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights

Cases

Anton Piller KG v Manufacturing Processes Ltd & Ors [1975] EWCA Civ 12

British American Tobacco Ltd. v. The Netherlands (1995) Series A, No. 331-A.

Sawkins v Hyperion Records Ltd [2005] EWCA Civ 565; [2005] 1 WLR 3281

General

Commission on Human Rights, 2001. Economc, Social and Cultural Rights: Intellectual Property Rights and Human Rights (E/CN.4/Sub.2/2001/12/Add.1), New York: United Nations Economic and Social Council.

Commission on Intellectual Property Rights, 2002. Integrating Intellectual Property and Development Policy,, London: Department for International Development.

Confino, J., 2012. Vandana Shiva: corporate monopoly of seeds must end. The Guardian, 8 October.

Croskery, P., 1993. Institutional Utilitarianism and Intellectual Property. Chicago-Kent Law Review, 68(2), pp. 631-697.

Drahos, P. & Campbell, T. D., 1996. A Philosophy of Intellectual Property. London: Routledge.

European Court of Human Rights, 2010. European Convention on Human Rights. Strasbourg: Council of Europe.

Fisher, W., 2001. Theories of Intellectual Property. In: S. R. Munzer, ed. New Essays in the Legal and Political Theory of Property. Harvard: Harvard University Press.

Gordon, W. J., 1993. A Property Right In Self-Expression: Equality And Individualism In The Natural Law of Intellectual Property. Yale Law Journal, Volume 102, p. 1533–1609.

Hegel, G., 1991. Elements of the Philosophy of Right (1821). Cambridge: Cambridge University Press.

Hughes, J., 1988. The Philosophy of lntellectutal Property. The Georgetown Law Journal, 77(2), p. 287–365.

Kinsella, S. N., 2008. Against Intellectual Property. Auburn: Ludwig von Mises Institute.

Kravets, D., 2009. File Sharing Lawsuits at a Crossroads, after 5 years of RIAA litigation. Wired, 08 April.

Landes, W. M. & Posner, R. A., 1989. An Economic Analysis of Copyright Law. Journal of Legal Studies, Volume 18.

Locke, J., 1690. Second Treatise of Civil Government. s.l.:many editions.

Machlup, F. & Penrose, E., 1950. The Patent Controversy of the Nineteenth Century. Journal of Economic History, Volume 10.

Mackaay, E., 1990. Economic Incentives in Markets for Information and Innovation. Harvard Journal of Law and Public Policy, 13(867), pp. 867-909.

Mack, E., 1990. Self-Ownership and the Right of Property. Monist, 73(4), p. 519–543.

Mansell, R. & Steinmueller, W. E., 2011. Copyright Infringement Online: The Case of the Digital Economy Act Judicial Review in the United Kingdom. London, LSE Research online.

Masnick, M., 2012. Copyright Extension: A Way To Protect Hollywood From Having To Compete With The Past. Tech Dirt, 06 June.

Moore, A. D., 2012. A Lockean Theory of Intellectual Property Revisited. San Diego Law Review, Volume 50.

Palmer, T. G., 1989. Intellectual Property: A Non-Posnerian Law and Economics Approach. Hamline Law Review, 12(261), pp. 261-304.

Palmer, T. G., 1990. Are Patents and Copyrights Morally Justified – The Philosophy of Property-Rights and Ideal Objects. Harvard Journal of Law and Public Policy, 13(3), p. 817–865.

Porterfield, A., 2018. Are seed patent protections abused by Monsanto and other agro-corporations?. Genetic Literacy Project: Science not Ideology, 5 January.

Rand, A., 1963. For the New Intellectual: The Philosophy of Ayn Rand. London: Penguin.

Rand, A., 1967. Capitalism: The Unknown Ideal. New York: Signet.

Rothbard, M., 2004. Man, Economy and State: A Treatise on Economic Principles. Auburn: Ludwig von Mises Institute.

Schroeder, J. L., 2004. Unnatural Rights: Hegel and Intellectual Property, Jerusalem: Cardozo Law, Legal Studies Research Paper No. 80.

Shapiro, D. et al., 2012. The Invention of Compact Discs. [Online]
Available at: faculty.tuck.dartmouth.edu/…/dup-1EIS_Main_Project_Compact_Disc_Paper.pdf
[Accessed 22 04 2019].

Soto, H. d., 2000. The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else. New York: Basic Books.

United Nations, 1976. International Covenant on Economic, Social and Cultural Rights, New York: United Nations.

United States, 1788. Constitution of the United States. s.l.:s.n.

 

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