Abstract
The moral acceptability of intellectual property rights is often assessed by comparing them to central instances of rights to material property. Critics of intellectual ownership claim to have found significant differences. One of the dissimilarities pertains to the extent of the control intellectual property rights bestow on their holders over the material property of others. The main idea of the criticism of intellectual ownership built around that dissimilarity is that, in light of the comparison with material property rights, the power is excessive. In this article, I assess this objection to intellectual property rights in connection with patents and copyrights. I maintain that it is implausible.
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Notes
The idea that the moral justifiability of intellectual property rights depends on whether they are relevantly similar to material property rights is not unappealing. For, as material property rights are primary examples of ownership rights, it would seem that to be property rights at all intellectual property rights should be reminiscent of them. And insofar as intellectual property rights differ importantly from rights to material property, the grounds that support the latter would not seem to buttress the former (cf. however the section ‘A Problem with the Argument from Excessive Control’ below). Besides the difference focused on in this article, it has also been argued that intellectual objects can be used by several people simultaneously, that they are social products, that they are “free by nature,” that rights to intellectual property delay the progress of science and education, etc., that the corresponding does not hold in the case of material objects and material property rights, and that intellectual property rights are therefore impossible or at least hard to morally warrant (cf., e.g., Breakey 2012; Kinsella 2013; Shiffrin 2001). These other criticisms of intellectual ownership are put aside here.
Besides copyrights and patents, the common examples of intellectual property rights include trademarks and industrial design rights.
Sometimes the rights I just referred to as moral rights to intellectual property are instead called ‘authors’ rights.’ Yet within some jurisdictions what are referred to as authors’ rights also comprise economic rights to intellectual property. I here choose to use the terminology of the main text above.
The criticism of the argument from excessive control presented in section ‘A Problem with the Argument from Excessive Control’ below however applies more generally.
Someone who, say, accepts only some (intellectual) property rights or wants to reject private property altogether might want to formulate an argument relating to the power intellectual property rights give their holders in some other way. Moreover, instead, or besides, comparing intellectual property rights with material property rights, it could be maintained, for instance, that the control intellectual property rights involve leads to disproportionate economic gains for intellectual property rights holders. I now put this and further possible lines of criticism of the power intellectual property rights give their holders aside and focus on the argument from excessive control presented above only.
Besides the above characterization of patents and copyrights and the below specifications of it, see also, e.g., The Berne Convention for the Protection of Literary and Artistic Works and the Agreement on Trade-Related Aspects of Intellectual Property Rights.
Some of its advocates may want to use the argument from excessive control to criticize intellectual property rights and then object to material property rights on some other grounds. Yet that would appear to be rather rare.
Western intellectual property laws usually include provisions that restrict the rights of authors and inventors (see, e.g., Article 10 of The Berne Convention). For instance, the “fair use” and “first sale” provisions allow individuals to use copyrighted works for personal, nonprofit, and educational purposes and to re-sell works that have been legitimately purchased. I assume that the “fair use” and “first sale” limitations are endorsed here, but for the sake of simplicity abstract from any further restrictions of the kind.
The above considerations do not show that some other reasons, beyond those on which the argument from excessive control focuses, for objecting to the power intellectual property rights give their holders over others’ material property could not be acceptable. But, as was also already suggested, such other reasons are beyond the topic of this article.
That the creation of an intellectual object really was independent from the already patented object can be difficult to establish in practice. Yet this does not entail that there is no problem of independent creation. As independent creators are allowed to copyright already copyrighted objects, establishing that creation really was independent has also not been deemed overly difficult in the case of copyrights.
An anonymous reviewer objected that if rights are warranted in utilitarian terms this difference in the power that patents and material property rights give their holders may be justified without violating the rule that morally similar cases are to be treated in the morally same way. Yet, while the utilitarian approach is popular in the context of intellectual property law, it has been criticized precisely for skipping over morally relevant issues. Indeed, it has been argued that its focus on the promotion of public good makes utilitarianism altogether unable to warrant genuine rights (cf., e.g., Dworkin 1984; Himma 2012, p. 1120). The present case can be seen as an instance of the problem such criticisms point at. When Bertha patents it, Edward does not have similar rights to the invention both he and Bertha created as Bertha, rights similar to those Anna and Charles have to their houses. Yet it would seem that, from the present viewpoint, Edward is morally like Bertha, Anna, and Charles. Accordingly, maintaining that considerations of utility still warrant the distribution of rights begs the question why those considerations should be accepted.
There can be other reasons for allowing independent creators to patent already patented intellectual objects than that of comparing the power intellectual property rights give their holders with the control possessed by holders of material property rights. Becker (1993), for instance, maintains that considerations of desert support granting patents for independent creators (see also, e.g., Gordon 2010). As Becker does not focus on the control property rights involve and not all justifications of material property rights are desert-based, the argument advanced here is different from that of Becker.
The above argument is, of course, not the only consideration relevant to determining whether patents ought to be remodeled in the form of copyrights (see also, e.g., Armond 2003). Accordingly, I now put aside the question whether intellectual property laws actually should, all in all, be revised along the above proposed lines. My purpose here is not to provide a strong case for allowing independent creators to patent already patented intellectual objects but that of assessing the import of the argument from excessive control.
See Christopher Phelps & Associates LLC v. Galloway.
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Varelius, J. Do patents and copyrights give their holders excessive control over the material property of others?. Ethics Inf Technol 16, 299–305 (2014). https://doi.org/10.1007/s10676-014-9355-4
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DOI: https://doi.org/10.1007/s10676-014-9355-4