Ayn Rand on Intellectual Property
Last Updated on Sunday, 28 February 2010 12:10
Written by dbhalling Sunday, 28 February 2010 12:10 |
There seems to be a lot of confusion about Ayn Rand’s position on intellectual property both by her supporters and her detractors. For instance, the Cato Institute considers it almost a prerequisite to have read Atlas Shrugged to work there. However their position on patents and copyrights is in direct contradiction to Ayn Rand’s position. 
The following quote from Atlas Shrugged, should give you a hint at Ayn Rand’s position on intellectual property:
“Man’s mind is his basic tool of survival. Life is given to him, survival is not. His body is given to him, its sustenance is not. His mind is given to him, its content is not. To remain alive he must act and before he can act he must know the nature and purpose of his action. He cannot obtain his food without knowledge of food and of the way to obtain it. He cannot dig a ditch––or build a cyclotron––without a knowledge of his aim and the means to achieve it. To remain alive, he must think.” Rand 1992, p. 1012.
Ayn Rand devotes a whole chapter, Chapter 11, in Capitalism: The Unknown Ideal to patents and copyrights. The first sentence makes her position crystal clear. “Patents and copyrights are the legal implementation of the base of all property rights: a man’s right to the product of his mind.”[1] “What the patent and copyright laws acknowledge is the paramount role of mental effort in the production of material values: these laws protect the mind’s contribution in its purest form: the origination of an idea.”[2]
After pointing out that intellectual property is the source of all property rights, she clarifies the distinction between the idea and the physical embodiment. “What the patent or copyright protects is not the physical object as such, but the idea that embodies it. By forbidding an unauthorized reproduction of the object, the law declares, in effect, that the physical labor of copying is not the source of the object’s value, that the value is created by the originator of the idea.”[3] “Thus the law establishes the property right of the mind to that which it has brought into existence.”[4] She then points out that “patents and copyrights only pertain to the practical application of knowledge, to the creation of a specific object which did not exist in nature.”[5]
Next, she tackles the whole question of whether a patent is privilege (in the modern sense of a gift)[6] or is a right. According to Rand, the government does not grant a patent, in the sense of a gift, privilege of favor, but recognizes the originator of the idea and protects their rights in the idea.[7]
Rand has a very interesting take on the reason for limited terms of patents and copyrights. She analogies a patent or copyright to a debt owed to the inventor/author by people that copy the inventor’s invention or author’s book. Debts are not and cannot be perpetual, so this is why the term of patents and copyrights are limited according to Rand. I will note that real property rights are actually time limited also. A person only has a property right in real (personal) property during their lifetime. How can someone who is not alive own something – this would be a logical absurdity. However, real property is passed on to the person with the next best title to real property upon a person’s death. In the case of intellectual property, no one person has better title to intellectual property than anyone else so upon the expiration of its term it becomes free for all mankind to use. Or as Rand explains, real property “can be left to heirs, but it cannot remain in their effortless possession in perpetuity: the heirs can consume it or must earn its continued possession by their own productive effort.”[8] In contrast, “Intellectual property cannot be consumed. If it were held in perpetuity, it would lead to the opposite of the very principle on which it is based: it would lead, not to the earned reward of achievement, but to the unearned support of parasitism.”[9]
Rand seems to anticipate the patent thicket discussion and suggests that this is the reason for shorter terms of patents than copyrights.[10] She also suggests that it is very difficult to correctly define the limits of a patent boundary.[11] Here, she is mistaken. There is no evidence of a patent thicket ever existing on a macroeconomic level, only evidence of people who do not want to compensate an inventor for using their technology. The boundaries of patents are no more difficult to define than those of copyrights or land before GPS and title insurance. However, patents will be more useful as the equivalent of title insurance for invention is created.
I will end this post with a particularly prescient quote from Rand:
Today, patents are the special target of the collectivists’ attacks . . .[12]
[1] Rand, Ayn, Capitalism: The Unknown Ideal, Signet, New York, 1967, p. 130.
[2] Id.
[3] Id.
[4] Id.
[5] Ibid. p. 131.
[6] See Adam Mossoff’s excellent paper “Who Cares What Thomas Jefferson Thought About Patents?
Reevaluating the Patent “Privilege”, where he points out that historically a privilege is a right that can only be secured in society, essentially synonymous with what we would call a “civil right” today. http://www.pff.org/issues-pubs/ip/bulletins/bulletin2.2jeffersonprivilege.pdf
[7] Rand, Ayn, Capitalism: The Unknown Ideal, Signet, New York, 1967, p. 131.
[8] Ibid. p. 131
[9] Ibid. p. 131
[10]Ibid. p. 133
[11]Ibid. p. 133
[12]Ibid. p. 133
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In light of the recent The L. Neil Smith – FreeTalkLive Copyright Dispute I was inspired to look up what Rand said about intellectual property.
Your article raises many questions for me.
You say: “real property is passed on to the person with the next best title to real property upon a person’s death. In the case of intellectual property, no one person has better title to intellectual property than anyone else so upon the expiration of its term it becomes free for all mankind to use.”
What denotes “next best title.” What is the quality that makes one’s title of inheritance more robust(?) than another? Blood relation? Contract? Bequest? Proximity? First come first serve(as in grave robbing)? What quality makes “next best title” not applicable to “intellectual property”? How can a legitimate(?) heir have “better title” to the physical products of one’s labor, but somehow not to the “intellectual products” of the same person’s labor? We seem to have a distinction without an actual difference.
Also, what does Rand have to say on parallel independent innovation. As I said on another website: two inventors, engineers, or scientists following parallel lines of progress arrive at the same conclusion roughly at the same time, but innovator A’s car breaks down on the way to the patent office, letting innovator B’s patent squeak by the finish line 53 seconds ahead of his competitor.
Did she support “Whoops. Tough $#!% innovator A. From now on change your motor oil more often and better luck next lifetime.” or upon proof of independent investigation “#@&% you very much innovator B; this is all my own work so go tell it to Satan. HE might give a damn what you’ve been up to cause I sure as hell don’t. And neither do my customers.”?
If the “first-to-invent” theory rules, what happens if the evidentiary equivalent of a photo-finish shows a definitive draw? Or if the order of invention cannot be determined with any reliability? Is Rand’s proposed debt owed to one, the other, or both?
If the “first to file” theory reins, what happens in the event the Romulans show up and assert their rather obvious prior patent rights on civilization? Or for a more down to Earth scenario what happens if I go to Africa and find a aboriginal tribe who uses a locally known hoodia extract to cure AIDS, which I was just granted an American drug patent for? Who’s claim is legitimate?
And finally, is Robert Klassen’s “Innovation Clearing-House” a ridiculous exaggeration of “Intellectual Property” rights or it’s logical conclusion from a Randian stand point?
First of all, let me say that the point of this post was to explain Ayn Rand’s ideas not mine. Although we agree on most points.
Why is intellectual property not inheritable?
Actually, intellectual property can be inherited. However the term of intellectual property is limited. For instance, patents are good for 20 years from the date of filing. Copyrights last for the life of the author plus 70 years (copyrights owned by author).
As to why the term of intellectual property is limited. I think the post explains that well.
What denotes next best title?
In common law countries it is important to understand that your ownership of property is due to the fact that you have the best claim on the property. For instance, if you build an airplane then you own the airplane because you created it. If someone else were given title to the plane you built without you consent that would be stealing your labor. When you die your property is essentially not owned by anyone. (Your term of ownership has expired) The question then is who should now take possession and ownership of the property you owned? If you have a will, then you define who has the next best title. If you die intestate, then a statute determine who has the next best title. Not every jurisdiction has the same intestate statute. However, most agree that your spouse is likely to inherit most or all of your property. Generally, this makes sense since your spouse probably contributed to you being able to acquire the property. Offspring are usually next and then next of kin.
Parallel Independent Innovation?
I do not have Ayn Rand’s book with me right now, but she does discuss this issue in her book. Based on memory her point about simultaneous invention is that first true inventor has title to the invention. Thus, your hypothetical about the car breaking down to the patent office has no effect on who obtains the patent. Given this, I think she would not be in favor of a first-to-file system and I agree. As a patent attorney, I can tell you that parallel independent inventions rarely happen. In the US, we have a process for resolving cases where there is almost simultaneous invention and there are very few of these cases a year – 55 last year.
Photo Finish? As I stated, these cases almost never occur. However, the point of the legal system is to determine who has the property rights. If the parties do not agree to share the property rights then one will be determined to be the owner of the invention. While the result may not always be correct, at some point it is also important that clear title be established so that the property can be put to work.
Robert Klassen’s “Innovation Clearing-House”
I am not familiar with his work, but what I found on the internet seems to suggest a perpetual right in your inventions and discoveries. Ayn Rand is clear that there is no perpetual right (infinitely long right) to property. Even real property rights essentially end when your life ends. Ayn Rand also would not support a property right in scientific discoveries. For instance, no one can own the rights in Newton’s third law of motion. However, you can own rights in an invention that takes advantage of Newton’s third law of motion.
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