Abstract
It is often argued that the fact that intellectual objects—objects like ideas, inventions, concepts, and melodies—can be used by several people simultaneously makes intellectual property rights impossible or particularly difficult to morally justify. In this article, I assess the line of criticism of intellectual ownership in connection with a central category of intellectual property rights, economic rights to intellectual property. I maintain that it is unconvincing.
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Notes
Though the main types of property theory have different versions, I here refer to them generally as the Lockean theory, the consequentialist theory, and the personality theory of property. For brief characterizations of them see the sections Non-Rivalrousness and Lockean Economic Rights to Intellectual Property, Consequentialism and Personality Theory below.
Questions of intellectual property have received wide attention in economics and within legal studies. Yet I will thus not consider the justification of economic rights to intellectual property from the viewpoint(s) of economics. I also put purely legal questions aside. However, insofar as intellectual property laws need to have a sound moral basis, the considerations presented below are also relevant from the viewpoint of legal studies and legislation.
Extant Anglo-American laws of intellectual property include provisions, such as ‘fair use’ and ‘first sale,’ that allow individuals to use intellectual objects protected by intellectual property rights for personal, non-profit, and educational purposes and to resell legitimately purchased copies of intellectual objects.
Shiffrin mentions two exceptions to this. According to her, works in progress may require exclusive control by the creator to be brought to full fruition and things like diaries and intimate letters may require prolonged exclusive or highly restricted use “for their production to be possible, for their communicative purpose to be achieved, or for their meaning to be fully realized” (Shiffrin 2001, p. 157; cf. Attas 2008, pp. 33–34).
Wilson’s criticism focuses on non-consequentialist justifications of economic rights to intellectual property, justifications according to which the protection and promotion of certain characteristics of intellectual property right holders or particular activities the right holders engage in justify intellectual property rights independently of whether the rights enhance any instrumental or consequentialist goals (Wilson 2009, pp. 400–401, 412 see also 426).
While it is not clear whether Shiffrin and Kinsella would apply the argument from non-rivalrousness to author’s rights, Wilson (2009, pp. 412–413) states explicitly that he uses the argument to criticize economic rights to intellectual property only. As stated, I limit my focus here correspondingly.
Yet Himma (2005, p. 1) says that the non-rivalrousness of intellectual objects is certainly a reason against thinking that protection of intellectual property is morally justified.
Besides the right to exclude others from using a material object, rights to material property are commonly taken to include the rights to sell, transfer, or devise that right to others. (One’s ownership rights to one’s body are often seen to constitute the main exception to this. Yet one is generally allowed to sell one’s labor.) Below I refer to these rights as economic rights to material property.
Though they would allow the person to donate it to those who need it, his economic rights to the medication would not obligate him to do that. Therefore, the person’s having economic rights to the medication would not suffice to account for the morally relevant considerations that make it his moral duty to donate the medication to the desperately needy.
As a proponent of the Lockean theory of intellectual property Moore is evidently well aware of this. While the labor theory of property has its difficulties (see, e.g., Attas (2008) and Breakey (2012)), to quote Feser (2005, p. 61), “it at least provides the beginnings of a story that makes it clear how anyone can come to own something.” For recent defenses of the labor theory of intellectual property see, e.g., Moore (2012), Mossoff (2012), and Cwik (2014). And, of course, there are other grounds for defending rights to intellectual property than the kinds of considerations of labor Lockeans about intellectual property rely on (see below).
The above quoted article by Moore is rather recent, but the one by Himma has been available for almost a decade. To the above reflections someone might object that because material objects are rivalrous, it is practically necessary to adopt the institution of private property in their case. But since intellectual objects are non-rivalrous, there is no similar need for the institution of intellectual property. Therefore, the conclusion of the objection could be, the argument from non-rivalrousness disproves economic rights to intellectual property, the above criticism of it notwithstanding. However, instead of responding to the criticism of the argument from non-rivalrousness presented above, this possible objection rather ignores it. The point of the former is that, for the reasons explicated above, the moral justification of economic rights to property is distinct from the questions of practical necessity to which the argument from non-rivalrousness draws attention.
It could be objected that the consequentialist and the personality approaches are rather used in arguing for intellectual property rights than against them and that, therefore, the employment of the approaches here is awkward. However, also the Lockean starting points referred to above have been used both by proponents and opponents of intellectual property rights. And even if they were not, as the non-rivalrousness of intellectual objects has been given such a central role in connection with the justification of intellectual property rights, I take it that the uses to which the consequentialist and the personality theory are here put are at least worth considering.
I now refer to the above made comparison between an inventor’s bicycle and her intellectual creations.
Though people are plausibly not the only beings whose preferences count morally, they would seem to be the only beings that can have beliefs as regards the justificatory relevance of the non-rivalrousness of intellectual objects. Accordingly, I now speak of people only.
A hedonist consequentialist might object that, as long as their satisfaction brings happiness, even preferences based on faulty reasoning and factual mistakes should count. However, as attested to, for instance, by everyday experience, satisfying such preferences would appear to be unlikely to bring (as much) happiness (as satisfying informed preferences).
Of course, all consequentialist property theories do not focus on preference satisfaction. However, for reasons like that pointed to in note 15, a definition of a moral goal that involves, or is based on, faulty moral reasoning is likely to be implausible. Accordingly, the considerations just presented arguably apply even if the view now at hand was formulated in terms of some other consequentialist theory of property than the preferentialist one just briefly considered.
To be clear, this is not to say that the non-rivalrousness of intellectual objects alone would warrant intellectual property rights in the personality theory or that it would entail that we must ensure that people get enough money to express themselves in the ways in question here.
That is, the rewards creators can gain from their work should not be excessive (or overly meager). For discussion on the notion of proportionality relevant here see, e.g., Merges (2011, Ch. 6).
Someone might now object that, as their holders can also want to use economic rights to intellectual property to improve their market situation by keeping new inventions off the market, the above suggested focus on selling (copies of) objects protected by the rights is overly limited. However, even if a right holder used her economic rights to intellectual property to keep new products off the market, objects that can be employed by any number of people would seem to be more in need of protection by rights than those that can be used by one person at a time only. (If the activity just described is not morally acceptable—the question is, say, about keeping vital medications off the market so as to be able to cash in with less effective ones,—it would appear to amount to a misuse or abuse of property rights and therefore should arguably not be morally permitted whether or not the objects in question are rivalrous.).
That others have access to private information about one can be quite disturbing. The notion of privacy, or at least certain senses of it, would thus appear to be closely connected to the constitution, maintenance, and development of a self. And, as Moore suggests in the above quotation, reasons of privacy can ground claims to exclude others from gaining access to intellectual objects (Moore 2012, p. 1093). Because of their non-rivalrousness, intellectual objects are, once made public, often more accessible to others than rivalrous objects are. Accordingly, also from the viewpoint of privacy just described the non-rivalrousness of intellectual objects rather strengthens the case for rights to exclude other from using the objects than weakens it.
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I thank an editor and an anonymous reviewer of this journal for valuable comments on the manuscript of this article.
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Varelius, J. Is the Non-rivalrousness of Intellectual Objects a Problem for the Moral Justification of Economic Rights to Intellectual Property?. Sci Eng Ethics 21, 895–906 (2015). https://doi.org/10.1007/s11948-014-9574-4
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DOI: https://doi.org/10.1007/s11948-014-9574-4