|
Private Property or
Social Goods Intellectual Property
and Morality |
-Michael J. Malone
Intellectual property is any idea,
invention, discovery, symbol, image, expressive work, in short any potentially
valuable human product (broadly, information) that has an existence separable
from a unique physical embodiment.[1] Ethical justification of exclusive
intellectual property rights is a formidable task. Relying on John Lockes theory, that property
rights in material goods flow from prior property rights in ones body,[2]
or similar theories of entitlement to desert resulting from ones labor[3]
have been discussed elsewhere and shown problematic. [4] I shall address these arguments, but show
them short thrift, focusing primarily on the utilitarian argument which is increasingly scrutinized by
economists but remains largely unexplored by philosophers.
I will not pretend to offer a solution
to the complex problems related to intellectual property here but will merely
insert a note of caution that should be kept in mind in the formulation of an
ethical intellectual property regime, that intellectual property can be
justified only as a recipient right by appealing to utility, and thus litigation
demanding retribution from individual violators of intellectual property rights
is unjust.
Arguments based on the Lockean
theory (of property rights) attempt to justify intellectual property rights as
flowing from prior property rights in ones own body. From self-ownership comes individual autonomy. Locke argues that should one choose to labor
in the creation of some material good, property rights in that good follow from
self-ownership. In other words, since I
own my body, I own anything I choose to produce with my body. That may be so, but extending this argument
to claim exclusive ownership of intellectual property is a fallacious
generalization.
While physical property can be
intuitively understood as the product of individual labor, this is atypical of
intellectual property. Intellectual
property is not created ex nihilo. By
and large intellectual property is created by combining individual labor with a
prior social stock of intellectual property.
Thus, under Lockes theory, the laborers who created the stock of
intellectual property that contemporary innovators draw from are equally
entitled to property rights in any new creation, perhaps in proportion to labor
exerted. This counter argument is
clearly articulated by Robert Nozick when he wonders whether, in pouring a can
of tomato juice into the ocean, he ought to gain the ocean or lose his tomato
juice.[5]
The desert argument is similar in
that it claims individuals are entitled to some remuneration for their
efforts. Utilizing this theory to
justify exclusive intellectual property rights is not persuasive, however, as
it conflates the distinction between entitlement to some desert, and what that
desert should be. Edwin Hettinger
suggests that [p]roperty rights in the created object are not the only
possible reward. Alternatives include
fees, awards, acknowledgement, gratitude, praise, security, power, status, and
public financial support.[6] Again, a strong counterclaim can be made that
entitlement to economic remuneration through free market transactions is not a
just desert. While the individual laborer
is entitled to remuneration for their efforts, they have no claim to
remuneration through the arbitrary conglomeration and demand supply
relationships of the free market economy.
This argument has been explored in
depth by John Christman in his egalitarian analysis of property rights as justified
by appeals to self-ownership.[7] He makes a distinction between control rights and income rights. The former
consisting of the rights to use, possess, manage property, and the right to
capital. The latter being the right to
increased benefit from relinquishing ownership of an asset. Christman notes that
for
income rights to be exercisable, it must be the case that (a) other people have certain preferences, (b) others
have certain information, (c) barriers and transaction costs have a certain
structure and/or (d) relatively permanent social structures have been set up
allowing for (a) through (c) to arise and stabilize.[8]
Since
these conditions are not controlled by individual economic agents, such agents
are not entitled per se to benefit
from their arbitrary structure.
While both of these theories provide
insufficient justification for exclusive intellectual property rights, some
economists and utilitarian philosophers have found powerful arguments for justification
in studying the rational interaction of economic agents in conditions of
scarcity.[9]
The
Tragedy of the Commons
is a well known intuitive model which is often generalized to the case of intellectual
property. It tells the tale of several
farmers sharing a common pasture upon which they graze their sheep. As told by Professors Eloise Malone and
Charles Cochrane the story proceeds as follows
As
the common meadow is owned by everyone, it is the responsibility of no
one. The total number of sheep grazing
this pasture is at the maximum sustainable amount of grass the pasture can
yield to maintain the sheep. It is in
the farmers collective interest not to allow any additional sheep to graze in
this pasture and to try to secure an agreement among themselves to that effect.[10]
Unfortunately,
an agreement is not forthcoming.
Self-interest clashes with group rationality and each farmer sneaks several
additional sheep into the flock. As the
flock size exceeds the carrying capacity of the land the grass is consumed more
quickly than it is naturally replenished.
Degradation of the pasture ensues, followed by the death of the sheep
which graze the pasture. Thus the
farmers, who rely on the sheep for their livelihood, fall into poverty.
The obvious solution provided by
economic analysis is the enclosure and privatization of the common meadow. The reason being, self-interest of individual
farmers will be held in check by the pasture owner, with strong rights to
exclude, who does not want to deplete his land.
The question remains, however, whether enclosure and privatization is an
ethical solution in all cases. For the
utilitarian argument to be persuasive, enclosure and privatization must provide
more aggregate utility than any alternative solution.
Several counterexamples exist which
suggest enclosure is not the most efficient solution in the case of
intellectual property. Perhaps the most obvious
example is open source software[11],
which James Boyle calls
[An]
existence proof, that in some cases we may not have a tragedy of the commons
but
a comedy of the commons. [It is] a
happy situation in which collective management of a resource is actually better
in purely cold hard economic terms as well as perhaps in other more social
contexts.[12]
Boyle
suggests that once we recognize this counterexample it becomes apparent that we
do things this way often. Academia is organized
in a similar fashion; reputation building matters more than economic remuneration
for publication. Thus privatization of academic
research serves only to prohibit access through higher prices, providing little
benefit. Without intellectual property
rights, in an academic context, scholars would still publish purely due to
non-economic incentives.[13] Publications would be more widely available,
at less cost. Thus, there would be increased
aggregate utility in society. Moreover
such a solution would provide more equity than the current system, a side
effect with little weight in a utilitarian conception of morality, but
nonetheless important to note.
Proponents of enclosure generalize the
tragedy of the commons to include the case of intellectual property, and in so
doing fail to recognize some fundamental characteristics of intellectual
property. The tragedy stems from
depletion of a scarce resource, and scarcity is not a common characteristic of
intellectual property. While a large
flock of sheep may deplete the resources of the common meadow, distribution of
a commonly owned publication to a large population depletes nothing. Any scarcity of intellectual property in the marketplace
is artificial; it is a product of enclosure, rather than a preexisting
condition which enclosure aims to ameliorate.
In fact, creation of scarcity is oft
noted the goal of the legal regime of intellectual property rights. By giving creators the exclusive right to
sell their creation, supply can be limited, which increases the equilibrium price
in the market, allowing creators to recover the high fixed costs of creation. Without such a mechanism, it is argued, there
would be no incentive to produce intellectual property. Actually, there would be a disincentive to do
so, rational agents would simply wait for others to innovate, letting them bear
the fixed costs of innovation, then duplicate their efforts without being
burdened by these costs themselves.
From these intuitions it follows that
intellectual property rights are what Lawrence Becker calls recipient rights.[14] A bearer of such a right is entitled to some
reward for their creativity, but it is problematic to determine the form of
this reward and specifically identify the duty-bearers. In this case the right bearer is entitled to
some reward because creation of a certain amount of intellectual property is
necessary to reach maximal social utility, and an incentive system is a
requisite means in attaining this end. I
would like to suggest that, while entitlement to remuneration through free
market activities is difficult to justify, utilizing the market system to
reward bearers of recipient rights is convenient. Furthermore, as the bearer of a recipient
right cannot demand remuneration, but may simply assert that someone ought to remunerate them, this
system is appropriate in the case of intellectual property.
As policy, the choice of free market
remuneration for bearers of intellectual property rights is not a bad one. However, the inability to justify entitlement
to such remuneration should be kept in mind, especially in legal proceedings in
which right bearers demand compensatory retribution from violators of their
intellectual property rights. The
duty-bearer in this case is a generalized other, no specific entity can
ethically be singled out as responsible for providing remuneration. Formation of an ethical intellectual property
regime should proceed cautiously with this in mind; right bearers cannot
morally demand retribution for violation of intellectual property rights from
specific individuals.
[1]
William M. Landers, and Richard A. Posner. The
Economic Structure of Intellectual Property (
[3]
[4] For an in depth discussion see Edwin C. Hettinger, Justifying Intellectual Property, Philosophy & Public Affairs 18, no. 1 (Winter, 1989): 31-52.
[7] John Christman, Self-Ownership, Equality and the Structure of Property Rights, Political Theory 19, no. 1 (Feb., 1991): 28-46.
[9] See
for example, William M. Landers, and Richard A. Posner. The Economic Structure of Intellectual Property, 1-424. Ironically Judge Posner has written
previously about the limitations of morality in law, and still concludes that
intellectual property law in the
[10]
Charles L. Cochrane, and Eloise F. Malone. Public
Policy: Perspectives & Choices (
[11] The
open source software movement is a frequently cited example of the efficiency
of a system of unrestricted commons under limited control. How far this example can be extended as
analogous to other areas of intellectual property is debatable. For a good overview of what the movement is about
see Eric S. Raymond, The Cathedral and
the Bazaar: Musing on Linux and Open Source by an Accidental Revolutionary
(
[12] James Boyle, The Second Enclosure Movement?, Conference on the Public Domain, 34 min., 2001. Audio Recording. available via < http://law.duke.edu/pd/realcast.htm >.
[13] And students would certainly not be dissuaded from writing research papers, although their academic merit is often questionable.
[14]