..:: Traditional justifications for intellectual property ::..
Traditional justifications for intellectual property
Intellectual property law is that area of law which concerns legal rights associated with creative effort or commercial reputation and goodwill. There are five main types of intellectual property: copyright, patents, trademarks, registered designs and trade secrets. Intellectual property; is the ownership of the intellectual expression of ideas. It is the most basic form of property because a man uses nothing to produce it other than his mind. In this country, copyright has existed since the Statute of Anne in 1709. The 20th century saw a flood of legislation that has protected this basic form of ownership culminating with the Copyright, Designs and Patents Act 1988 which contains over 300 sections. There are various justifications for having intellectual property and the law has reflected this to a large extent by protecting this form of ownership.
This is the moral issue, based on the eight commandment: 'thou shalt not steal'. The basis being that if someone can just copy ones creation or invention, why should one bother to create or invent something in the first place.
The result of this is that the owner has a monopoly. He can restrict commercial exploitation of his work. As a result the owner of intellectual property can use his dominant market position to produce a limited output of his product at higher prices than if there was competition. For example the European Court of Justice ruled that by refusing to license others to publish their listings, BBC and ITV were abusing their dominant position.
The second justification was expressed by Laurence Strerne in Tristram Shandy, 'The sweat of a man's brows, and the exsudations of a man's brains, are as much a man's property as the breeches upon his backside'. In other words one should own what he creates from his own brain; or as Professor Douglas Baird put it, people "have the right to enjoy the fruits of their labour, even when the labours are intellectual." What a person produces with her own intelligence, effort and perseverance ought to belong to her and no one else.
The great weakness in this justification is that others also need free access to our ideas. Edwin C. Hettinger argues that not all the value of intellectual products is due to labour. Intellectual products are social products. A perfect example of the problems with this justification is this essay! It is not possible for me to write this essay without referring to the works of other people including lecturers and earlier authors who provided the foundation for my contribution. Any piece of intellectual work is always built on and is inconceivable without the prior work of numerous people. Therefore to say that you should own what you create cannot be totally true because whatever you create is building up from something someone has already done.
A third justification is that people deserve property rights because of their labour. In other words, as Nozick argues, the fact that someone discovers or creates something and makes it a form of intellectual property should not worsen the position of others in that, if one had not stumbled upon the substance, no one else would have done so and everyone would have still been without it.
Hettinger argues that a fitting reward for labour should be proportionate to the person's effort, the risk taken and the moral considerations. Brian Martin adds that the value of intellectual work is affected by things not controlled by the worker, including luck and natural talent. Hettinger thinks that a person born with extraordinary talents, or who is extremely lucky, deserves nothing on the basis of these characteristics. A musical genius like Mozart may make enormous contributions to society but being born with enormous musical talents does not provide a justification for owning rights to musical compositions or performances. Another problem with this justification is where one person works hard at a task and a person with equal talent works less hard. Who deserves more reward in this situation? Possibly the first person, but it just goes to show that property rights do not provide a suitable mechanism for allocating
rewards. Intellectual Property may give the labourer much more or much less than he deserves.
This is the utilitarian argument that intellectual property provides a climate for creation and the accumulation of wealth. As a result people are more likely to engage in intellectual thought because they will benefit financially from it and at the same time aid in creation by development.
The argument that justifies intellectual property by saying that financial returns provide an incentive for creation is a farce. This is because most intellectual property is not created solely by the individual but as is more likely in a group, working for a company or the idea is as a result of a persons experiences. Kalashnikov, the creator of the famous gun, did this for the 'state'. He had not personally benefited from his creation. He was offered no financial reward yet he still produced a brilliant weapon. This just goes to show that people do not always need to be offered financial gain to come up with a good idea. Most creators do not actually gain much benefit from intellectual property. Independent inventors are frequently ignored and exploited and when employees of corporations and government have an idea worth protecting, it is usually copyrighted or patented by the organisation, not the employee. Brian Martin
argues that since intellectual property can be sold, it is usually the rich and powerful who benefit. The rich and powerful seldom contribute much intellectual labour to the creation of new ideas.
Intellectual property rights are needed to promote the creation and dissemination of ideas. A marketplace of ideas is created where people can freely exchange views and ideas and build upon them creating a wealthy and well-informed society.
The marketplace of ideas is flawed by the presence of economic inequality and is an artificial creation that serves powerful producers of ideas and legitimises the role of elite's. For example, the "free-market" is supposed to operate without outside intervention yet in reality the state is involved in the freest of markets. In the case of the marketplace of ideas, the state is involved both in shaping the market and in making it possible by promoting and regulating the mass media. The General Agreement on Tariffs and Trade (GATT) is an example of a highly protectionist system of intellectual property. The trade problems of the United States in the mid-1980s and the growing importance of technology as an industry created the perfect justification for putting intellectual property rights at the top of the national agenda, hence the United States has become the international advocate of strong intellectual property
protection. So rather than having views and ideas exchanged they are protected and only sold at great cost.
Inventors and investors are rewarded for their time, work and risk of capital by the grant of a limited, though strong monopoly. This benefits society by stimulating investment and employment because details of the invention are added to the store of available knowledge. This is the utilitarian argument put forward by Jeremy Bentham, who argued that, because an invention involved a great deal of time, money and effort and also included a large element of risk, the exclusive use of the invention must be reserved for a period of time so that it could be exploited and thereafter used for the general increase of knowledge and wealth. For example, Glaxo Wellcome will not put millions of pounds into medical research unless it believes that the product of that research will be protected and thereby offer the possibility of recovering the investment with interest.
It is understandable that when an invention is made public the producer should have an exclusive right to make, use or sell the invention in order to recoup the cost of research and development, production, labour, and marketing. But there are quite a few cases where patents have been used to suppress innovation. Companies may take out a patent, or buy someone else's patent, in order to inhibit others from applying the ideas. For example, from its beginning in 1875, the US company AT&T collected patents in order to ensure its monopoly on telephones. General Electric used control of patents to retard the introduction of fluorescent lights, which were a threat to its market of incandescent lights. In the United States the courts have ruled that genetic sequences can be patented, even where the sequences are found "in nature," so long as some artificial means are involved in isolating them. The consequence of this
is that transnational corporations are patenting genetic materials found in third world plants and animals, so that some of these countries will actually have to pay to use seeds and other genetic materials that have been freely available to them for centuries. In general, intellectual property is one more way for rich countries to extract wealth from poor countries. It will be very difficult for third world countries to catch up with the developed world if intellectual property is kept in the West. It forces these third world countries to buy products from the developed world.
Another justification of intellectual property is that it can be used to prevent disclosure of confidential information, like the manufacturing of military weapons and secret recipes for food and drink. This non-disclosure gives an advantage over competitors. An example of this is the secret design for the stealth bomber and the secret recipe for Coca-Cola. In both cases disclosure of such information would have had a detrimental impact on the manufacturers of such products.
Trade secrets can also be used for ulterior motives by various governments. For instance in trading nuclear weapons and withholding sensitive information in relation to trade. Trade secrets stifle competition, rather than encourage it. If a company can rely on a secret advantage over a competitor, it has no need to develop new technologies to stay ahead.
It can be argued in this day and age that the enforcement of intellectual property is hardly realistic or feasible. With the advances in information technology, the reproduction of computer software or anything else for that matter can be done at the touch of a button or the click of a mouse. There are many good reasons to support the need for intellectual property but there are many negative effects too. After a thorough examination of the traditional justifications it seems that on balance the traditional justifications for intellectual property are not as strong as they should be considering the amount of legislation in favour of it. There is an argument that intellectual property should not be owned at all. Instead ideas should be available to be used by anyone who wants to. The Linux operating system, developed by Linus Torvalds a university student from Finland as an alternative to windows is an example
of this proposition. Linux is written and distributed under the General Public License which means that its source code is freely-distributed and available to the general public. This is in contrast to licences for most software that are designed to take away your freedom to share and change it. General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software, that you receive source code or can get it if you want it, that you can change the software or use pieces of it in new programs; and that you know you can do these things. This may all be good news but intellectual property in this day and age still helps those with money, power and influence. It is the international corporations and conglomerates that are in a powerful position when it comes to lobbying and influencing governments in the pursuit of their own agenda. It is for this reason unfortunately that a flurry of legislation was passed during the last century and
it seems as though this won't change in the near future.
David Bainbridge, Intellectual property, 4th edition
Roger van den Bergh, The Role and Social Justification of Copyright: A "Law and Economics" Approach,  I.P.Q.