ETHICAL OPPOSITIONS TO IPR – CONT’D
Oppositions to Utilitarian – Pragmatic arguments
Utilitarian’s point of view is that the end justifies the means. Or more precisely, that the end of increasing public welfare justifies the means of restricting individual freedom. There are four fundamental problems with this point of view.
The Robin Hood problem
Assuming that societal welfare could be maximised by IPRs, this does not justify their existence. For example, if we take half of the wealth of the richest 1% in our society and give it to the poorest 10%, this would increase societal welfare (more people will have more wealth). However, this does not justify stealing from the richest and giving it to the poorest. Wealth maximization is not the goal of IPRs but justice; to give to each person what he/she deserves. In other words, even if wealth is maximised trough IPRs (which is something that has never been proven) this does not justify the unethical violation of some individuals’ rights to use their own property as they see fit.
Lack of coherence
Utilitarianism assumes that one can compare personal and subjective notions of wealth. One subtracts the costs of IPR from its benefits to determine if IPRs are beneficial to society. However, wealth cannot be measured since it is subjective. As it cannot be measured, it is impossible to determine if IPR’s are beneficial to society.
Burden of proof not met
Assuming that we ignore the Robin Hood problem and the incoherence problem and use standard utilitarian measures, it is not clear that IPRs lead to any change, positive or negative, in the overall wealth. It is the Utilitarian’s burden to prove this point and they have not done so. Economic studies do not show any net gains in wealth due to IPRs. In addition, the cost of maintaining an IPR system is enormous. This cost is never factored in the Utilitarian argument. Furthermore, it is not clear that IPRs are really necessary to encourage the production of creative works. Companies would probably be more innovative if they could not rely on a twenty year monopoly. They would also have more money to spend in R&D.
Use of force
Justifying IPRs leads to IPR laws. In ultimate analysis, to create laws is to ask if it is appropriate to use force against certain people in certain circumstances. Increasing the amount of wealth simply does not justify the use of force against otherwise legitimate property owners.
Opposition to the Personality Argument
The biggest problem with this argument is that it is based on notions that are highly subjective. Many renowned writers have attempted to come up with answers to specific questions but have arrived to widely divergent and opposing conclusions. This argument is not internally consistent and cannot be used to reasonably justify any IPR decision simply because any characteristic of such IPR has the same probability to being right as being wrong.
CONCLUSION
Moral, Legal and Ethical implementations and implications of IPR are very complex.
On the Moral side, it is clear that so far religions have not provided valid articles of faith-based arguments. Most religions are contempt with simply copy ethical ones, whose validity can be placed in serious question.
On the Legal side, it is clear that IPR are arbitrary being simple reflection of political views prevalent at the time. They provide no independent rational or insight. Furthermore, they are being transformed into extreme demands by vested interests and imposed through secrecy and political power.
On the Ethical side, it is clear that standard arguments have been seriously questioned and most likely invalidated.
This current state of affairs leads to only one possible conclusion: all IPR are highly questionable since they are based on faulty theories and assumptions.
POST-SCRIPT
It is clear that IPR cannot be justified from any rational point of view. However, there is one point that we have not yet explored. This is the practical point of view. Any person creating something new has spent capital on it. There is an opportunity cost that can be calculated. In other words, it is possible to know how much did this “creation” cost the owner. From this perspective, the “creation” can be considered either a product or part of a manufacturing process. As such it is only rational that the creator would expect to make a profit of this investment. Making a profit is not opposed by any of the arguments seen above, only the artificial monopoly that IPR impose. Therefore, any and all methods that the creator may choose to use, short of demanding an artificial monopoly over everybody else, are valid. For example, any type of contract is acceptable. In the case of copyright, a condition of purchase may demand agreement not to produce copies of the work. In the case of a patentable idea, a similar contract may work in some instances. In others a non-disclosure agreement may do it. A third way is to disguise the invention or seal it in an enclosure, and so on. None of these methods will impose a monopoly and they certainly won’t prevent people from produce copies. They will, however, delay those actions. And this delay is usually good enough. This delay is actually determined by the usefulness and desirability of the work or device. The more desirable it is, the sooner it will be copied, the sooner people will benefit. Volia! An automated method which provides creators with time to make profits while at the same providing people with innovation faster than laws, rules and regulations. Everybody benefits without the need for governments or judicial systems. But then, of course, this would interfere with governments, judicial systems and those benefiting from artificial monopolies and we can’t have that!
Note: please see the Glossary if you are unfamiliar with certain words.
