Justifications for intellectual property
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Justifications for intellectual property


hello in this lecture I’m going to be
talking about the philosophical justifications which have been put
forward for intellectual property it’s a very interesting area and it’s one that
I think will have you asking a lot of questions it’s also one where the
examiner likes to ask quite a few questions which is why we’re spending
time on it what questions do we need to consider well to start with there is
pretty obviously a huge question about whether creations of the intellect
should be treated as private property in the first place what are the
consequences that flow from doing this how are the interests of the different
parties involved in the process taking care of where does the law strike and
balance can we justify protecting intellectual property in the same way as
we can justify protecting real property or property in chattels intangible goods
does the advent of digital technology make any difference to the
justifications and how does this work in the global economy well I hope you’re
going to get some of the answers to those questions in the course of this
lecture but others of you think about let’s look first at how intellectual
property law works just in general terms if you’re at the beginning of an
intellectual property course then you’ve got a great deal to learn about the
detail in the coming weeks and months from a commercial point of view what
intellectual property does is make intangible creations of the intellect
tradable it turns them into commodities it commodifies them and it’s then
there’s at one level for a long long time in that for example copyright law
gives authors rights which they can then sell on some basis to publishers and of
course a similar thing goes on in lots of other areas too
but in the last couple of decades it’s gone even further than that it’s not
only of these intangible rights traded themselves but the product of those
intangible rights the books the movies the recordings they too have become
intangible but they can still be traded well whatever form the finished product
the intellectual goods take the important legal right that we’re
concerned with is the intellectual property right which protects it and if
you’re a big fan of property law it’ll mean something to you if I say that
these rights are mostly choses in action a shows in action there’s a property
right that you enforce in the courts rather than by possessing whatever it is
your motor car is a shows in possession but your copyright well you can’t
possess it it doesn’t have any concrete tangible form so it needs some other way
of protecting it the way that all intellectual property rights work is by
conferring monopolies on people and do read the article by Sir Robin Jacob
which I’m going to mention later it’s quite a few years old now and the
examples that he uses in it the illustrations are certainly no longer
current of the basic principle still is anything he says is worth paying
attention to whether it was whether when he was in the courts or in articles or
books he’s written before and after that part of his career and in that article
he suggests that it wouldn’t be a bad idea to stop talking about intellectual
property protection and start talking about intellectual property monopolies
because that’s identifying it for what it is and actually highlighting the fact
that it’s not necessarily a good thing when you learn more about intellectual
property if you haven’t already you realize that intellectual property
rights are monopolies of different strengths patents and registered designs
are strong monopolies that true monopolies because if you have a patent
or a registered design you can stop somebody using it without your
permission whether they knew that you had it or not
and if they make their own invention or design which is the same as yours that
won’t help them trademarks are monopolies too but they’re limited to
the goods or services that are specified in the trademark registration these days
trademark owners very often specify as many goods and services as they think
they can possibly get away with so trademarks become more and more like a
real monopoly but they’re not supposed to be that’s one of the things that
Robin Jacob is being critical about in his article so intellectual property
rights and monopolies and monopolies are usually regarded as bad things as far
back as 1623 the statute of monopolies prohibited them but then went on to carve out a little
bit of space for what we would now recognize is the patent system and other
forms of intellectual property have grown up in that same bit of space so in
a sense intellectual property rights are an exception to the basic prohibition on
the Napoles and again as a sweeping generalization like all exceptions in
the law they should be construed narrowly what we need to look at is why
it is appropriate for the law to grant this exception at all why should
intellectual property rights be permitted a lot of philosophers have had
a lot to say about private property in general and traditional justifications
fall into two broad groups some philosophers focus on natural rights and
regard the ownership of property as being part of the natural order of
things others focus on how grunting property
rights can give incentives to people if you allow somebody to own a piece of
land and they’ll grow food on it and they might be able to feed a wider
number of people and their immediate family there’s a lot more to it than
that you can’t divide all these theories into two neat groups but that’s a good
starting point once you start to drill down a little bit you’ll find that there
are some variations and the natural rights school you have John Locke
propounding his labor theory of property there’s a variation on that who are the
philosophers who suggest that the right to own property is all based on what the
individual deserves looking at the incentives that are available the
classic statement of the philosophical basis of property for giving an
incentive is the utilitarian approach the greater is good for the greatest
number but you’ll also find philosophers focusing on the fact that individuals
need to own property in order to preserve their sovereignty dignity and
security all because their property is tied up with their personality all
because it all helps to lead to what is sometimes called a just and attractive
culture and before moving on I should also mention that in the intellectual
property field particularly in connection with copyright there is an
important consideration about free expression
years ago when artists and writers and musicians were often caught employees
their job wasn’t necessary to say or paint or compose what they wanted but it
was to do what their boss wanted they made their living under a system of
patronage and of course if you’re in that situation you got to please your
patron taking them out of that equation and giving them legal rights which they
could then sell to publishers and allow all kinds of people to enjoy set these
creative people free so there’s a significant case for copyright to be
made under the heading perhaps for other types of intellectual property too you
can read a great deal about these topics there are many many articles a smaller
number of books in fact I think probably only one book and intellectual property
textbooks have also got material on this topic in them too
but to help you get more deeply into it I would recommend net head inches
article which I’ve listed on one of the slides and I’ve given you a link to
where you can download it from it’s not too long and it’s quite accessible but
funnily enough it’s quite critical of the way intellectual property law has
developed bear in mind when you read it but he’s an American philosopher writing
about American law so how helpful it is to restitute of English law you have to
judge but these are all general issues not on specific issues of the law then
as a book called a philosophical Asif II of intellectual property by Peter
derails it’s actually about 20 years old but it was republished in 2016 in
electronic form by the Australian National University and you can download
it from that website excellent book it is about 250 pages so you might not have
time to look at it but if you can make the time I do recommend it
finally the article by Sir Robin Jacob that I already mentioned I’ve got a link
to that but you should be able to find it in your institutions library online
library and it’s well worth reading also not too long because originally it was a
one-hour lecture so let’s look first at the natural rights approach to
intellectual property and start with the labor theory the labor theory of
property advanced by John Locke you’ll find it in his second treatise on
government it doesn’t actually take up a great deal of the book but I think it’s
fair to say that it’s actually what people have done with Locke some ideas
since his time that’s most important to you because Locke was writing in the
1600s 20 or 30 years before the first Copyright Act in this country a long
time before modern patent law started to take shape and at a time when the idea
of a trademark would probably be utterly incomprehensible in fact the Industrial
Revolution didn’t even get underway until the middle of the century after
Locke had been active so when you read what he says about property or you see
his ideas applied by later writers always remember that what he was
thinking of was an agrarian economy he’s thinking about people occupying plots of
land clearing them cultivating them growing
crops harvesting the crops picking apples from the trees using the wood
from the trees to make furniture and houses this is the world in which his
theory works it doesn’t take into account copyright or patents or
trademarks it tells us a lot of useful stuff about them but it certainly wasn’t
what he was thinking involve you could say that his basic idea is
that if you made it it’s yours that’s what the labor theory is all about we
own the products of our work we own what we create by cultivating land and in
fact we derive a claim to ownership of the land from cultivating it and we own
what we create by harvesting crops our labor is mixed with unknown objects
objects which until that time had been held in common common is a very powerful
concept and of course in Locke’s time there was a lot of common land ordinary
people had the right to graze their pigs and cattle on the common land and they
had their own plots on which they could raise crops and things and what happened
in the agricultural revolution in England was that the landowners started
to enclose the Commons and in Scotland are similar but much more draconian
process took place some time later the Highland Clearances all about landowners
asserting their rights to land which had previously been in common and if instead
of talking about land you talk about ideas you can see how intellectual
property law brings about a very similar result anyway going back to Locke to put
his proposition more formally individuals owned their bodies and the
labor and the labor becomes infused with an an owned object with the result that
the rights which the individual owns in their labor expand to include the
objects that they’ve labored on you can’t deny that it’s got a certain
logic and a certain attraction and it works okay in an agricultural economy
however there are many objections to a rigorous adherence to Locke’s ideas
there are references here to more articles and books and things waldron
says that the whole idea is incoherent labor and objects are like oil and water
you can’t mix them prude on the French anarchist who famously said property is
theft makes the point that if labor is the important thing why’d you discount
the contribution of a second laborer or one answer to that is probably in
Locke’s time if labor a one had ploughed the field laborer two couldn’t plow it
as well they’d have to go and find their own field of now but if inventor one
creates a wonderful new vacuum cleaner and inventor to independently creates an
identical one they’ve both put in the same amount of labour and on Locke’s
theory they should both own something at the end of the process patent law
doesn’t recognize that doesn’t work hire at all that can only be one inventor an
invention a second guy that comes along with the same thing doesn’t get anything
then we’ve got no six objection in his book and that he state in Utopia why do
we say that the labourer gains the object when we could just as easily say
he loses the laborer and knows it then famously makes the
point that it’s rather like throwing a can of tomato juice into the ocean and
claiming that you own the ocean it’s certainly fair to say that the result is
strange if no account is taken of the value of the labor put in by the
labourer they might do very little to the object to make it their property
they might just pick an apple out of a tree and Locke tries to tell us that
almost all the value of the Apple lies in the picking it’s the labor not the
object that’s that’s actually valuable and insofar as the apples sitting in the
tree waiting to be picked isn’t actually worth anything to anybody there’s a
certain amount of truth in that but it’s still fair to ask how much of the value
of the object the laborer should have person who applies their labor to it
because after all what they’re doing is mixing two things together they’re
mixing their labor with the object and instead of saying that that means that
the object becomes theirs entirely it could be that the labor the effort that
they put in becomes diluted and they get rewarded with something less than full
ownership of the object of their labors and then what if they’re using social
products in their work what if they’re taking advantage of the infrastructure
that’s been built the roads for example energy networks that too somewhat
undermines the claims to private ownership so Locke’s theory attractive
as it is certainly doesn’t answer all the questions about property and that’s
before we’ve even gone into looking at intellectual property as a separate
issue there’s no doubt that these natural rights theories can justify at
least some intellectual property protection it doesn’t help with
trademarks because trademark protection doesn’t reward the laborer doesn’t
reward effort trademarks aren’t creative they’re not inventive they simply do a
commercial job okay I know there is creativity involved in a lot of
trademarks but its rewarded in a different way there will be copyright in
the creative elements and a trademark to be protected doesn’t need to be creative
but when you look at patents and copyright there’s certainly a more
compelling case for saying that there’s a natural right to protection but if you
accept that how do you accept the fact that the law says that that protection
is going to be limited in time what about the fact that the law says that if
you want protection you’ve got to apply for it you don’t get a patent
automatically you’ve got to go to the Patent Office and ask for it and
moreover you’ve got to pay for it so if it’s your natural right surely there
should be no costs associated with obtaining the monopoly some of these objections are dealt with
by taking a slightly different view and focusing on what people deserve instead
of asking whether I could a natural right to something asked whether I
deserve it I might be naturally gifted athlete I
wish but do I deserve to have that ability but following on from them this
line of reasoning proposition obviously extended from Locke’s theory is that the
laborer deserves to benefit from their labor they spend their time plowing the
field and growing the crops picking apples they should get something back
for that but what they get back doesn’t necessarily have to be property there
are other ways of rewarding people labor that they put in laborers don’t actually
want property all the time remember I’m using the word labor in a very very
broad sense here instead of property there might just want admiration they
might want to be acknowledged as particularly good in their field and if
they do want property if they do want to own something at the end of the process
they might find that the value of what they own is out of proportions the
effort that they put into it they might have to work particularly hard or
actually they might have had a very easy ride and you’ve also got to acknowledge
the fact that individuals are not all the same different people’s efforts
produce different results I can put a lot of effort into running and I still
get beaten by people who look as if they’re to have me a far easier time of
it than me well John Locke did think about some of
the objections to his own original theory and in the second treatise on
government he explains that there is an important proviso so somebody who Labor’s on a piece of
land or picks apples out of the tree can create a property right provided that
enough and as good is left in common so the next person who comes along wanting
to plow a field comply the neighboring field there’s still enough land left to
go round next person who comes along want you to pick apples can get apples
out of the same tree there’s still enough to go around
well not necessarily the same tree it’s incumbent on the people who are applying
their labor not to waste anything so don’t fence in more London you can
plow don’t pick more apples than you can deal with giving people private property
is ok provided it doesn’t worsen another person’s position there’s got to be some
land left to cultivate or I prefer to pick and here you can really see how
Locke wasn’t thinking about the intellectual property system at all not
surprising because it didn’t come along for several hundred years afterwards the
patent system doesn’t leave anything in common the patent system rewards the
first person who comes along and it gives that person everything everything
that is within specified limits so it’s still open to the next person that comes
along to make a vacuum-cleaner doesn’t fall within the scope of the
first guy’s patent but that’s a rather different notion of enough and as good
from what Locke was talking about in the first place compared the copyright system that’s
very different copyright recognizes that two people may create something that’s
pretty well identical they might write a story which has many of the same
features it might be based on the same fundamental idea and because copyright
works on the basis that there is copyright in the expression the actual
form of words used to tell a story or the notes used to compose a piece of
music or ever there might be the expression not the idea is what’s
protected it really quite works quite well at meeting the requirements of
Locke’s proviso enough and as good is left in common for others to work on
anybody else who wants to work on that idea is still able to do so
notwithstanding the fact that somebody has already told the story in their
words in competition with the natural law approach is utilitarianism a
positive law approach which recognizes how the law can be socially beneficial
and you’ll find basic ideas of utilitarianism expressed by John Stuart
Mill and to a greater extent by Jeremy Bentham writing well over a hundred and
hundred years after Locke and in a very different era when industrialization was
in full swing and politics was changing dramatically
so with society the touchstone for any legislation in the utilitarian world is
that it should deliver the greatest good for the greatest number things are going
to be absolutely good or absolutely bad but the important question is going to
be whether thee some of happiness in society can be increased as a result so
the utilitarians would promote creation by granting limited rights
if you read the Constitution of the United States of America you will find
as a clause empowering Congress to pass copyright and patent laws which says
precisely that Congress can have power to do these things to encourage people
to write and invent and give them exclusive rights to their writings and
inventions for a limited period of time being given the rights and doesn’t
guarantee success of course but without them you’re bound to fail it’s hard to
tell how well this utilitarian approach works whether it actually does optimize
social utility because you can only tell whether it’s doing that by empirical
evidence and it’s very hard to measure but it has been hugely influential in
the United States in particular with their written constitution but also on
the rare occasions or perhaps even rare single occasion when the English courts
have had to consider justification for intellectual property a patent case
dryers out stuff against Hayek the Court adopted a very utilitarian analysis of
what the patent system was all about it also provides a way of justifying
copyright because you grant limited rights to writers and composers and
artists and give them an incentive to carry on producing it even provides a
justification for trademarks which really don’t fit under any natural law
theory but they do help with social utility
with the greatest good for the greatest number because they convey lots of
information very efficiently to consumers and as economists would say
and indeed many economists do say this sort of thing they minimize consumer
search costs so there’s a social benefit to trademarks which only works because
the trademark owner has got certain exclusive rights and is therefore going
to be the only person in the marketplace with that trademark the only area really
were utilitarianism doesn’t help explain how intellectual property works is with
trade secrets and confidential information they’re rather hard to
justify because giving people a monopoly over trade secrets doesn’t actually give
them an incentive to do anything to create those secrets the fact is that
those secrets have come into existence and they’re just being protected as a
matter of necessity having said which the ability to protect trade secrets and
other types of confidential information is extremely important and that in
itself could be analyzed from a utilitarian point of view the fact that
businesses have the ability to protect their trade secrets is an important
aspect of a functioning society and is going to help optimize social utility
commentators looking to justify private property have long focused on
sovereignty dignity and security the fact that property is needed to meet
these basic human requirements you need shelter and unique nourishment and
people do try and apply these principles to intellectual property but it’s
difficult to say that convincingly is difficult to put forward the proposition
that owning intellectual property is necessary to sovereignty dignity and
security in the same way that shelter and nourishment is the intellectual
property can be useful it can help you earn a living but it’s not a basic human
requirement in the same way as a roof of your head and food on the table
and in fact there is a further objection to applying this approach if the patent
law law allows you to stop other people using their inventions in inverted
commas and creations then it could be detrimental to their dignity so if you
read the Hechinger article for example you’ll find not a lot of time is taken
talking about sovereignty dignity and security as a justification for
intellectual property in another approach Hegel in particular argues that
intellectual products are an extension of one’s personality that individuals
have moral claims to their talents feelings character traits and
experiences and to actualize these externally in other words I think you
could say to turn them into something concrete and tangible requires some sort
of property right it’s by controlling objects in a very broad sense of the
word that the individuals will is allowed to take form and through that
individuals attain freedom which sounds extremely nebulous but if you go back to
the sort of person that John Locke was writing about you can think in terms of
somebody using the wood from a tree to make a chair it might be very ordinary
and functional chair it might be a very artistic high-class chair it’s got
something of the makers human experience in it and it’s helping them perhaps in a
very small way to attain freedom freedom to be able to sit on it or perhaps the
freedom to sell it for a lot of money in any event the point here is that an
individual’s personality becomes fused with the object this all rather begs the
question of whether we actually own our own feelings
and rather like professor no.6 tomato juice it could be argued that instead of
extending our claims to feelings and so on to the objects we might alternatively
say that the feelings have been abandoned in some societies the person
who Labor’s owned over making a nice comfortable chair pause their soul into
it but doesn’t get anything at the end because it’s taken away and used by
somebody else it becomes common or property perhaps the maker probably gets
a different form of satisfaction but it might not be something that Hegel would
recognize the point also made that personality based claims don’t justify
property and we’ll see this at many points in the intellectual property
course that you’re doing now let me just mention at the moment that in copyright
law we have a whole set of rules devoted to protecting the moral rights of
authors alongside their economic rights they’re not property rights but they’re
quite an important adjunct to property rights to eat might rights and they
recognize that the author of a copyright work has got some claim that their
personality is involved finally we’ll come to the just and attractive culture
argument which says that property rights can and should be shaped to foster the
achievement of a just an attractive culture
interestingly this is directed to questions about what to do with property
rather than whether whether it’s a good thing to have property to begin with so
it’s a rather different way of looking at things it’s an approach which has
been taken by Thomas Jefferson by Karl Marx in his early days by the legal
really school and lots of other philosophers particularly the proponents
of classical republicanism there’s a sort of idealism involved there when you
talk about a just an attractive culture it’s not far removed from the
utilitarian approach but it’s a wider concept in the utilitarians idea of
social welfare however social welfare itself might be hard to measure
economists have got ways of doing it so you can tell when utilitarianism is
working but who’s got a yardstick to measure of just an attractive culture
different societies through history have got very different ideas about what is
just an attractive in cultural terms and just between democracies and
dictatorships there’s a big big gap but it’s certainly something that
intellectual property can help with copyright law is very much tied up with
culture and indeed that illustrates rather nicely how these different
justifications apply to different rights intellectual property laws never
distinguish good from bad copyright law protects great music and mundane music
advertising jingles it protects popular music and unpopular
music and I don’t think anyone would seriously suggest that it shouldn’t
patents will protect blockbuster drugs that could change the lives of many
people suffering from some disease and also in a member of the example that I
came across once a technique for creating works part using the nose of a
dog it’s not the job of the intellectual property system to distinguish between
good and bad but some of the justifications we’ve been looking at
look a bit shaky when you take out of the equation how worthwhile the
intellectual objects that are being protected are if the examiner asks your
question about a single justification working for all types of intellectual
property then you’ll be able to say the different types of intellectual property
rely on different justifications the natural law model works quite well for
copyright including moral rights the utilitarian approach justify as giving
limited monopolies through copyright and patent laws to give an incentive to
create a utilitarian can also recognize the social value in a trademark even
though it’s got no creativity or innovation in it it does the useful job
by minimizing consumer search causes trade secrets require some other sort of
justification but they’re not property in the strict sense anyway
well there is a wealth of material that you could read on this topic of
justifying intellectual property rights and I haven’t even dared to get into a
Marxist critique of the way intellectual property works that’s something for
another session but I hope this lecture has got you off to a good start and that
it’s fired of your interest to look further into the topic thanks very much
and I’ll speak to you again soon

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