Today I will deal with a topic that I too rarely speak of, namely intellectual property rights. What is it? And what is its metaphysical, moral and legal basis?
Intellectual property rights are rights to ownership over products of the mind such as novels, music, articles, research data and software. Today this form of property right is under heavy attack especially from two groups, namely marxists and some libertarians. The strange thing is that these groups essentially have the same metaphysical reason against intellectual property rights, even if they in other contexts are enemies. Both launch a materialistic attack on intellectual property rights. Generally this amounts to denying the existence of information. Materially speaking information does not exist. Only matter exists, and therefore there can be no such thing as intellectual property, only material property rights.
If for instance a libertarian buys a book he will argue that this physical book is his property and that he therefore can do whatever he wants to with it, including copying its content and distributing it as he wishes. Since information really does not exist he has done nothing wrong, violated no-one, since he has only manipulated atoms that he himself owns (the physical book).
Let us now investigate the consequences of this view. It is easier to understand the implications of this line of reasoning if look at the general case, namely information rights, which intellectual property rights are a part of. If information does not exist and therefore cannot be owned this implies that privacy laws have no moral basis. Espionage should then be perfectly legal. If one breaks into a house and find sensitive information the break-in itself will be punishable, but not the spreading of sensitive information found in the house during the break-in. One could also prick someone with a needle and acquire blood which allows one to get hold of that person’s DNA. A needle prick in itself is not a major violation and would therefore not be severly punished, but to map that other person’s DNA and spread sensitive data about that person’s genetic disorder must be legal since this is only information, which does not really exist.
But it gets worse. All contracts build on information rights, i.e. the premise that the information contained in an agreement results in legally binding rights. To be consistent the libertarian must argue that contracts cannot exist because all that exists are atoms. In other words, one can scribble on a piece of paper or make sounds with one’s mouth, but these cannot be legally binding since information does not exist.
In addition threats will also be legal. To hold a gun and say “hand me your money or die” cannot be illegal since this after all is just a series of noises. Information has no existence. In other words, to be consistent a libertarian must claim that only a physical violation is illegal. A rapist who threatens his victim with a knife will not be convicted in court unless he physically hurts his victim because he will claim that the knife is his and he was taking it for a walk. Sure, he uttered a few words about killing the poor woman if she did not obey him, but they were just sounds and it is her own fault if she interpreted those noises as threatening.
Lies and defamations are also out of court. A journalist can invent an interview with whomever he likes and print it in his paper. This will not be illegal because it after all is just ink on a piece of paper. Information does not exist and therefore lies cannot have any legal consequences.
And then there is intellectual property rights. If you write and publish a book, anyone can copy the content of that book and put all of it free on the Internet, or make pirat copies of your book and sell them, or publish the book under another name, or change the content of the book as one pleases.
To be fair, it is only this last thing that libertarians actually are in favor of, and if you confront them with this list they will deny that these are implications of their view. They will claim that they are advocates of privacy, because they feel like it, and that this has nothing to do with their view on property rights. These are separate topics because nothing relating to information can be connected. “Information rights? What are you talking about? Information does not exist! How can privacy have anything to do with publishing books?”
But man is properly not viewed only as a material being, but also as a spiritual one. We are different from other beings in that we have a free will and we survive by abstracting and processing information from our environment. We are not only corporal beings, but also very much information beings.It is with information that we tell lies and truth, it is with information we make deals, and we codify our mental work in the form of information. Yes, even something as mundane as secrets and privacy are codified as information, and all this will from a classical liberal perspective give rise to information rights in line with the principle that the individual owns himself and has the right to decide over his own life. Therefore we need privacy laws, contract laws, intellectual property rights and protection from fraud and threats. All these fall in under the concept of information rights and without that concept a proper government that protects individual rights will not be possible.
Codification of intellectual property rights
The next step is to show what legal building blocks are needed to make intellectual property rights. If you go back hundreds of years to England in the late medieval period, there were laws concerning property and contracts. Contract law was different from today in that it was only possible to make legally binding agreement between named parties. A lot of contracts are like that even, such as marriage. One party in a marriage cannot hire a substitute to replace him because a marriage is an agreement between two specific, named individuals.
But this constraint in contract law was a major impediment for commerce and finance. It prevented the rise of paper money, bonds and other financial instruments. Frequently traders were travelling far and it was impractical for them to bring with them large quantities of gold. Therefore it was desirable to have a type of contract with a nameless counterparty. That is, whoever held the contract could legally make the claim of the contract against the other party. In this way a contract between a depositor and a bank could be transferred to another party. By so doing that contract could now act as a substitute for gold, which was easier to carry and handle than large quantities of physical gold. Whoever held such a contract which said “redeemable in gold” could go to the issuer and swap that contract for the amount of gold stated on the banknote. (of course, gold was later then abandoned and banned as money altogether, but that’s another sad, sad story.)
This was a seminal development in law because it now allowed people to treat contracts not only as a legal document, but also as property in its own right that could be transferred, bought and sold. As we shall see this was an important step towards intellectual property.
A corollary to this was to enable the combination of physical property with contracts that were tied to the property, and not merely to the owners. In law this is known as a lien. For instance, a farmer may sell his property with the condition that the old farmhouse shall be maintained and preserved. This is a lien on the property. The condition is built into the property and a claim on a nameless owner, so that if the buyer sells the farm to a hitherto unknown third party, then that condition still applies to the third party. He, the third owner must also maintain and preserve the old farmhouse as a precondition for buying the property. Liens are part of the property. They are transferred with the property.
Liens can also be used to implement a limited form of intellectual property rights. Suppose now that an author publishes a book. The buyers of the book are free to sell or give the book to others as they see fit. They are free to read it, burn it, use it as bricks or however they like, but the book comes with certain legally binding restrictions. The intellectual content of the book cannot be distributed and sold. These restrictions are transferred to any new owner of the book. They are liens.
But what about third parties who acquire a book by non-contractual means, i.e. through theft or by finding a book that has been lost or dumped? They have never agreed to anything, either explicitly or implicitly. Someone who hears a song on the radio has never signed a contract that obliges him not to copy and distribute it. Obviously this reduces the power of liens with respect to information to impotence, and this is where a third and crucial advance in law was necessary to complete the legal framework of intellectual property rights, namely declaratory laws.
A declaratory law is a default standard contract that is assumed to be valid, unless something else is explicitly agreed upon. All laws that pertain to social relations can be formulated as declaratory laws. Ending someone’s life, for instance, is not in and of itself a violation. It depends on whether that person wants to die or not. In the first case, the act is euthanasia which is legitimate, and in the other case it is murder which is a criminal offense. But it would be impossibly cumbersome if everyone had to go running around with signs stating that they do not wish to be killed or harmed in any way. To avoid this one can reduce the amount of bureaucracy and legal overhead by creating a declaratory law which is an unsigned, implicit standard contract states that by default unless anything else is agreed upon, killing someone is murder.
Declaratory laws entail major effects on people’s lives and on society and must therefore be carefully constructed so that they do not violate the rights of individuals, but that is a topic for another time. It is sufficient to state that when constructed properly and legitimately declaratory laws can be used as the final building block necessary to implement intellectual property rights.
The declaratory law needed to complete the framework is a law that states that by default the copyrighted information cannot be copied or distributed without the consent of the owner of the copyright. This means that if a copyrighted book comes into your possession by non-contractual means then you are still bound by the lien contained in the book, which bars you from copying or distributing the content of the book. Similar declaratory laws can be made for patents and other kinds of intellectual property rights.
The limitation of such a declaratory law is that with time a work of fiction or a patent becomes so diffused into the culture that it is impossible to avoid them, and therefore all intellectual property rights must be time limited and expire.
In summary, the legal framework that is needed to implement intellectual property rights is 1) contracts with unnamed, unspecified parties, effectively rendering contracts into property, 2) liens which allow contractual restrictions to be codified into property and 2) declaratory laws which allow the restrictions to apply also to people who acquire such property by non-contractual. Anyone who wishes to attack intellectual property rights must therefore also attack these three legal constructs in general. This effectively renders rule of law impossible. Hence, an attack on intellectual property rights is an attack on the rule of law.
Update: it appears that covenant may be the more accurate English term rather than lien.