Adam Mossoff on Property Rights: A Must Read for Capitalists and Patent Attorneys
Why Intellectual Property Rights? A Lockean Justification, by Professor Adam Mossoff, is probably one of the most important papers written on property rights in over a century. The point of the paper is to show Locke’s labor (physical and especially mental) theory of property rights provides the moral justification for intellectual property (copyrights and patents).
One of the strengths of the Lockean property theory is that it recognizes that IP rights are fundamentally the same as all property rights in all types of assets—from personal goods to water to land to air to inventions to books.
The paper clearly shows that Locke understood that it takes both mental and physical effort to obtain those things man needs to live. Anything that man makes valuable through his efforts, he obtains a property right in.
Locke himself expressly justifies copyright as “property” and approvingly refers to “Inventions and arts” in his summation of his theory that property arises from value-creating, productive labor that supports the “conveniences of life” in § 44 of the Second Treatise. In 1690, the legal concept of patents (property rights in inventions) did not exist yet, and so this is an explicit indication of Locke’s willingness to include what would later become the legal concept of patents within his property theory.
Locke explains that the world exists for “the use of the Industrious and Rational.”
Interestingly Locke distinguishes between copyrights (and patents by extension) and monopolies something that many modern critics of patents are unable to do.
In an essay on the statutory printing monopoly granted to the Stationers Company by Parliament, Locke condemns such monopolies as violating the “property” in creative works that “authors” rightly claim for themselves. In what might be a further surprising claim for many today who think copyright terms are too long, Locke writes in this 1695 essay that authors should have their property rights secured to them for their lifetimes or after first publication plus “50 or 70 years.”
I have argued that the term of a patent should be 35-40 years for the same reason. As I have explained here, no property right is eternally. Dead people do not have property rights.
Another misconception about property rights is that they are the same for every object or value created by man. As Mossoff explains Locke did not make this mistake.
As Locke first explained, property is fundamentally justified and defined by the nature of the value created and secured to its owner … To wit, different types of property rights are defined and secured differently under the law.
This naturally leads to a final observation: Given differences in produced values in the world, such as a water well, domesticated animals, a fecund farm, the desert sand used to make silicon for computer chips, air, broadcast spectrum, corporations, stock, credit, future interests, inventions, business plans, books, paintings, songs, and the myriad others, the specific legal doctrines that protect these values will vary.
It is amazing how many people miss this point, which leads to all sorts of erroneous ideas about what property rights are. This is perhaps the most important point in the whole article.
Property rights are highly misunderstood in today’s world by both lay people and academics. They are even misunderstood by many supporter of capitalism, particularly libertarians and supporters of Austrian Economics, but also by Objectivists and supporters of Ayn Rand.
Libertarians and the economics profession in general have accepted the utilitarian justification for property rights, which is a misnomer and turns property “rights” into arbitrary government grants. In addition, it fails to explain how property rights are acquired, who they belong to and why, among other problems.
Ayn Rand appears to be in basic agreement with Locke. She states:
Any material element or resource which, in order to become of use or value to men, requires the application of human knowledge and effort, should be private property—by the right of those who apply the knowledge and effort.
Capitalism: The Unknown Ideal “The Property Status of the Airwaves,” Capitalism: The Unknown Ideal, 122
Rand also discusses property rights in the chapter Patents and Copyrights in Capitalism: The Unknown Ideal. While she has some keen insights, she never developed a fully articulated theory of property rights.
In my limited research into the history of property rights theory there was excellent research and work starting around Locke and the Enlightenment. Before that property rights were derived from the King (government). In many ways the economics profession, particularly the Austrians have gone backwards to the idea that property “rights” are whatever the government says they are. Scholarship continued on property rights particularly in the United States at least until the first Homestead Act, which showed a clear understanding of property rights. However, that research had died by the time the FCC was created in 1934.
Locke, the Founders, and Ayn Rand understood that property rights are the cornerstone of freedom. Modern libertarians often think property rights can be replaced with contracts. This is confusing cause with effect. Contracts rely on property rights not the other way around. Some Objectivists undermine property rights by rejecting Locke, the Founders, and Rand’s understanding that each individual has a property right in themselves (Self Ownership or Self Sovereignty). This is also based on a misunderstanding of what property rights are and how they are derived.
Let’s hope that Adam Mossoff will continue his excellent work in this important area.
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