Abstract
The expiration of intellectual property rights has been seen to amount to a problem for non-consequentialist theories of intellectual property. In this article, I assess whether the difficulty is real. I maintain that, as things are at least, there is no sufficient reason to believe that the termination of intellectual property rights is an insurmountable problem for non-consequentialist theories of intellectual property rights.
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Notes
See also Breakey (2010, p. 208), Attas (2008, p. 30), and Ochoa (2010). Ochoa (2010, p. 150) writes that ‘[t]he logical extreme of the natural rights view is that the duration of copyright should be perpetual.’ It would seem that Breakey wants to argue against the natural law theory of intellectual property only (Breakey 2009) and in the above quotation Boyle too speaks about natural rights to intellectual property. However, as the considerations presented below apply to the natural law theory of intellectual property, I now put this point aside.
This example comes from Dworkin (2011, p. 9).
For a useful recapitulation of the main problems of consequentialist property theories see, e.g., Alexander & Penãlver (2012, Ch. 1).
Someone might object that the above criticism of the argument from expiration is beside the point because proponents of the argument just want to maintain that existing rights to intellectual property—rights which typically terminate—cannot be warranted in non-consequentialist terms. However, though some proponents of the argument from expiration might want to use it in that way, not all of them do (cf., e.g., Boyle 2008; Breakey 2012). And, from the viewpoint of morally assessing intellectual property rights, the problem of whether the non-consequentialist approach to justifying intellectual property rights is plausible is logically prior to the question of whether the existing rights to intellectual property can be warranted in its terms. If that approach is implausible, at least when other things are being equal, the question of whether current intellectual property rights can be based on it is morally rather irrelevant.
Someone might object that, because for Locke the final justification of property was the preservation and convenience of mankind (see Locke 2000, p. 115), the Lockean theory of intellectual property is not a purely non-consequentialist theory. Yet it is not clear that a Lockean theory of intellectual property must refer to such goals. And, in any case, goals like the preservation and convenience of mankind can arguably be seen as reasons for having the institution of property rather than as a justification of intellectual property rights that would compete with labor as a ground for such rights. If the institution of intellectual property did not adequately serve the ultimate goals, there would be Lockean grounds to criticize it. But that is compatible with seeing labor as the justification of intellectual property rights.
The considerations presented below are not purported to constitute the correct interpretation of Locke’s views on property. Instead, they are Lockean merely in the sense that they presuppose that labor and the two provisos mentioned above are of central relevance to justifying property rights. All theories of intellectual property that can be counted as Lockean theories need not be exactly similar to each other. However, as the considerations presented below do not focus on any particular Lockean theories of intellectual property, I here speak about the Lockean theory of intellectual property. I here speak about the Lockean theory of intellectual property. Insofar as the above brief characterization of the basic idea of that type of theory is not sufficient for the main argument of this article, it will be specified in pertinent connections below. For more detailed accounts of how the Lockean considerations support intellectual property rights see, e.g., Merges (2011, Ch. 2), Moore (2012), Mossoff (2012), and Peterson (2008). For problems with the Lockean theory of intellectual property see, e.g., Attas (2008), Breakey (2012), Shiffrin (2007), and Wilson (2009). If the other criticisms of it provided sufficient reason to reject the Lockean theory of intellectual property, assessing it in connection with the argument from expiration would be redundant. But on the issue of whether the other objections are that potent, the jury is still out.
The claim might entitle him to some compensation for his losing the land that the immigrants would take up. But at least if they remain destitute enough to just survive, and there are no governmental means of making up for their inability to compensate the landowner, the change in circumstances would effectually nullify the landowner’s property rights to the portion of land. Locke’s writings also provide grounds for questioning the justifiability of such compensation. For Locke (2000, p. 31.) wrote that ‘[a]s justice gives every man a title to the product of his honest industry, and the fair acquisitions of his ancestors descended to him; so charity gives every man a title to so much out of another’s plenty as will keep him from extreme want, where he has no means to subsist otherwise …’ If the idea expressed in this passage—the principle of charity as it has been called—is treated as an additional constraint on property rights (Waldron 2002, p. 177 ff.) the requirement for compensation would seem to lack adequate justification.
Exceptions to this include at least such objects of intellectual property as trade secrets and horse racing tips.
Patentable ideas must be useful and coming up with useful ideas can be hard. It would indeed seem that the more useful one’s idea is, the less patenting it satisfies the Lockean proviso. Consider the imaginary case that one comes up with an idea that solves all the problems in the world and patents it. In terms of the possibility of coming up with patentable ideas, that would leave others with nothing.
On the notion of a reasonable compensation see, e.g., Merges (2011, Ch. 6). The idea that the first Lockean proviso provides grounds for limiting intellectual property rights has been presented before. According to Gordon (1993, p. 1570), ‘[i]ntellectual products, once they are made public in an interdependent world, change that world. To deal with those changes, users may have need of a freedom inconsistent with first creators’ property rights.’ And Nozick (1974, p. 182) proposes that satisfying the proviso can warrant limiting the duration of patents (see also, e.g., Moore (2012) and Hull (2009)). However, the fact that the argument from expiration has advocates in the current literature on intellectual property suggests that the above reflections pertaining to the role of the two Lockean provisos in limiting the terms of Lockean rights to intellectual property are worth presenting. Indeed, that the idea that the Lockean considerations provide grounds for limiting intellectual property rights has been put forward previously buttresses the criticism of the argument from expiration presented here, rather than making it redundant.
For current discussion on inalienable rights see, e.g., Ellerman (2010), Kershnar (2003), and McConnell (2000). In the contemporary debate (too) the main candidates for inalienable rights are the right to life and the right to freedom. And all participants in the discussion do not accept that even such rights are inalienable (see, e.g., Kershnar 2003).
Perhaps some version of rule utilitarianism supports as strong property rights as the Lockean theory. In any case, most consequentialist theories would not appear to be able to buttress strong rights to intellectual property.
The usual considerations presented in support of the cessation of intellectual property rights are 1) that perpetual rights to intellectual property would delay the progress of science and education, 2) that after a certain period identifying and reaching the holders of intellectual property rights can become excessively difficult, and 3) that holders of intellectual property rights may not want to disclose the objects of those rights (see, e.g., Ochoa 2010, pp. 150–151). Yet, as things are, it is not clear that all and only these really are relevant considerations (see, e.g., Wagner (2003)) nor that the non-consequentialist theories of intellectual property cannot account for them as well as their rivals. And even if they could not, the theories might still all in all have fewer implausible aspects than their consequentialist competitors. An overall assessment of the competing theories of intellectual property is unfortunately not possible in this connection.
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I thank two anonymous reviewers of this journal for valuable comments on the manuscript of this article.
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Varelius, J. Is the Expiration of Intellectual Property Rights a Problem for Non-consequentialist Theories of Intellectual Property?. Res Publica 20, 345–357 (2014). https://doi.org/10.1007/s11158-014-9243-0
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DOI: https://doi.org/10.1007/s11158-014-9243-0