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ETHICAL VIEWS ON IP AND IPR

This section is the most important and interesting one. It deals with concepts of right and wrong that have broad support. These concepts eventually influence IPR Laws and even IPR Moral positions.

 

ETHICAL JUSTIFICATIONS FOR IPR

There are three main justifications for the existence of IPRs. They are:

 

Natural Rights / Justice Argument

It is based on Locke’s idea that a person has the right over one’s labour or products, which are produced through the use of our bodies. This applies to physical properties only. The argument extends Locke’s idea into non-physical properties (IPs) by stating that creations of the mind are the products of one’s labour and one’s mind. Because one owns one’s labour, one has a natural law right to its fruits. One is entitled to own these creations because they result from other things one owns.

 

Utilitarian – Pragmatic Argument

It is based on the idea that societies that protect private property are more effective and prosperous than those that do not. The premise is that public welfare or wealth will be increased by the promotion of intellectual works through ensuring a significant return on investment for creators. Without significant and tangible incentives there would be no new ideas. Without new ideas there would not be new goods and services and therefore our standards of living would never increase.

 

Personality Argument

It is based on Hegel’s notion that ideas are simply an extension of ourselves and our personality. When one creates an idea or design, they are placed at risk to be stolen and/or altered. IPR protects these moral claims.

 

ETHICAL OPPOSITIONS TO IPR

In the same way that justifications for IPRs exist, there are also valid oppositions. From this perspective, IPRs should not be allowed. They are:

 

Oppositions to Natural Rights / Justice arguments

The creation-based approach problem

The original argument specifies that IPRs deserve protection because they are created through our labour. It is a reward for our work. The problem with this approach is that it only protects certain types of creations, not everything that comes out of our mind. This distinction between what is protected and what is not is arbitrary and described as discovery (not protected) versus invention (protected). A discovery is something not created by the discoverer. However, this distinction is not clear nor rigorous. No one creates matter. Inventors simply rearrange matter according to physical laws. In this sense, no one really creates anything. Furthermore it is clear that an Engineer and a Theoretical Physicist they both engage in creative mental effort to create useful new ideas. Yet, the Engineer can easily obtain IPRs for a device, while the Theoretical Physicist cannot because his effort is merely a discovery. This distinction is inherently vague, arbitrary and unjust.

Creation is neither necessary nor sufficient to own a property. One cannot create a scarce resource without raw materials. If such materials are owned, then I don’t need creation to own the product, I already do. On the other hand, if I don’t own the raw materials, then I don’t own the creation either.

 

The limited term IPR problem

The original argument specifies that since IPRs are the rewards for one’s labour, it is unfair to extend this reward to other generations forever. Hence, there must be a time limit to these rights. The problem is that this approach needs arbitrary rules. Why do patents typically last 20 years after filing yet copyright lasts life of the author + 70 years? Or why not 19 years and 73.4500395 years respectively? No objective argument can be made one way or another.

 

The unlimited term IPR problem

This argument specifies that everything is protectable by IPRs forever. However, if we would to adopt such a concept, the absurdity and injustice caused by IPRs would be so large as to stop and even destroy humanity. For example, no one would be able to build a house without asking permission to the heirs of the first proto-human that built a hut! All use of tangible property would become impossible because every conceivable use of property would be bound to infringe upon somebody’s IP.

 

The scarcity problem

Property rights of tangible things are necessary because these things are scarce.  It is these property rights that prevent conflicts between people for scarce resources because those rights are just and visible. However, ideas are not scarce. If I invent a better mousetrap and you copy it, your act will not take the design away from me. I have lost nothing. There is no scarcity of my design, no conflict and therefore no need for exclusivity. However, IPRs create artificial scarcity where none existed before. IPRs do not arise from scarcity and therefore they cannot be justified by scarcity. Furthermore, artificial scarcity cannot justify IPRs since it would be a circular argument. It is artificial scarcity that needs to be justified.

 

Other people’s partial ownership problem

Through IPRs, creators gain partial control over other people’s tangible property. For example, if I own the copyright to a book, I can stop you from altering the contents of your own copy of my book. This is, simply by owning an intangible object (IP) some of your rights over your tangible property are automatically transferred to me. This means that IPRs trespass against the tangible property of other owners. Natural Rights / Justice arguments cannot justify this trespass.

 

The new rights problem

The problem with creating new rights over intangible properties (IPRs) is that the only way in which those rights can be expressed is through tangible goods. Which means that our existing rights on those tangible goods has been diminished. For example, the only way in which I can have an effective patent right is for me to have some control over everyone else’s resources. Through the patent I can prevent you from using your existing resources to re-create my idea. Merely innovating is not a justification to transfer partial ownership of property from others to the innovator. Just because such a rule can be proposed it does not mean it is workable or just.

Note: please see the Glossary if you are unfamiliar with certain words.

Continue to Intellectual Property Rights Are Dumb - Part 5

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