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.
Ever wonder why the US has a record number of people on food stamps now, why the median family income is declining, why the labor participation rate is the lowest since Jimmy Carter? You need look no farther than the fact that the US has fallen from 2nd or 3rd in 2000 in the Cato/Fraser index of economic freedom to 17th. It is not just our economic freedom we are losing as the NSA and IRS scandals make clear. This is not just an academic exercise either. As the report makes clear longevity, access to medical care, education opportunities etc all deteriorate with a declining of economic freedoms.
The irony of this report is that the CATO Institute has been inconsistent at best about supporting property rights, which is the key issue underlying economic freedom. CATO has adopted a utilitarian basis for “property rights” that suggests they are just a useful artifact for efficiently distributing scarce resources. So in fact, they do not support property rights but property grants or privileges. This also means that they are confused that patents are not property rights. Patents are the single most important property right to economic growth, especially in a developed country. CATO is therefore in the position of being for property rights at an empirical level, but arguing against them on a philosophical level. Interestingly this also means that CATO is inconsistent about supporting our Constitution, which requires that Congress secure the rights of inventors to their inventions. No wonder the US is an economic basket case.
There appears to be a lot of confusion on whether patents and patent laws are property rights and property laws or regulations. For instance, Steve Forbes in an article entitled, America’s patent system is all wrong for today’s high-tech world starts that article by complaining that the Obama Administration is always looking for a way to “regulate and interfere in the free market.” Mr. Forbes goes on to complain about Non-Practicing Entities (NPEs) asserting patent rights and ends the article by complaining that “don’t we have enough regulatory hurdles to jump in the first place?” I have seen this same theme that patents (all IP) are regulations in a number of blogs. These people do not seem to understand property rights. Part of the confusion may be that we do not have clear definitions of what property rights are and what regulations are. For instance, I looked up a number of definitions of property rights and the definition from Black’s Law Dictionary is representative.
What is PROPERTY?
The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others.
This definition is incomplete at best. For instance, is a taxi medallion a property right? Is a license to a part of the electromagnetic spectrum from the FCC a property right? Is a government monopoly to provide electrical power within a certain geographic region a property right? All of these are exclusive legal rights.
Personally, I would consider a taxi medallion or a FCC license a regulation. So I looked up a number of definitions of regulation, and the one below from Free Online Dictionary is representative.
1. The act of regulating or the state of being regulated.
2. A principle, rule, or law designed to control or govern conduct.
This definition is so broad as to encompass any law. For instance, is the right to free speech a regulation? Is the right to your house a regulation? Are the laws against murder a regulation? Is the Homestead Act a regulation? All of these control or govern conduct. When we are talking about regulations most people mean something like building codes or OHSA rules or the FTCs requirement that all bicycles are required to have retroreflectors on the pedals. We generally do not think of the laws against murder, burglary, or even the rules on recording title to land and houses as regulations. But if you look at these two definitions, property rights and property laws are a subset of regulations. This is clearly nonsense.
Most histories of the modern regulatory state in the US place its origin around 1900 and refer to agencies such as the Interstate Commerce Commission (whose original function was to regulate railroads), the Federal Trade Commission, the Securities and Exchange Commission, etc. This provides a clue to the correct definition of regulation and shows that we do not mean common law property rules or common law crimes when we are speaking of regulation.
According to Steve Forbes and most people when we think of a regulations we think laws and rules that interfere with the free market. Unfortunately, people use very loose definitions of ‘free market’. For instance, some people think a free market is one that has “perfect competition”, which suggests that anti-trust laws are part of the free market as might be the FTC. A better starting place to find out what is a regulation and what is a property right is the logical foundation on which this country was created – Natural Rights. Natural Rights define property rights based on the idea that if you own yourself you own the product of your labor. Thus you own land because you spent the effort to improve it, e.g., the Homestead Act. (Today most of us trade our labor for currency that we then use to purchase ownership in our house or land based on our Natural Right to contract. But the principle still applies.) Inventions are the creation of the inventor and therefore the inventor has a property right in their creation. I have created a three part test to determine whether something is a property right.
1) Does the right arise because the person created something?
2) If someone else was the creator would they have received the right in the creation?
3) Is the right freely alienable?
If the answer is yes to all three questions, it is a property right. A patent fits all three as does ownership in land. Note that taxi medallions, electrical power monopolies, and FCC licenses all have at least one no to the above definition. Thus a regulation is something that interferes with a person’s property rights, such as EPA wetland rules or the right to use your property to start a business. Other regulations, such as minimum wage laws interfere with a person’s right to contract.
A regulation is a government rule that interferes with a person’s Natural Right to property or right to contract.
Patents and NPEs do not fit that definition. This definition clearly defines that property rights are not regulations and limits regulations to true meddling in ‘free markets’.
Reason Magazine has released a video, entitled How Patent Trolls Kill Innovation. The magazine banner states that they support “Free Minds and Free Markets” but this video relies on the same irrational, emotion driven logic as the media. I cannot point out all the errors in this video, but below I will highlight some of the major points. Before I do that , let me show some of the sleazy attempts by Reason Magazine to use emotion and hidden assumptions to advance their argument, instead of reason and logic.
Emotion and Faith
*The video starts with the hidden assumption that patents are not property rights – faith not reason.
*The video uses the phrase “patent trolls” to immediately define who is right or wrong without actually proving their case – an emotional appeal.
*The video selects a small entrepreneur to narrate their story – using the typical liberal tactic of pretending this is a fight between a small virtuous entity against a big faceless entity. The reality is that so-called “Trolls” sue large entities much more often than small businesses. Emotional appeal, not reason.
*The video uses an “expert”, Julie Samuels, from a biased source, (Mark Cuban’s lobby group) who has no qualifications in the subject. She has a degree in Journalism and Law, which means she is NOT A PATENT ATTORNEY and does not have the technical skills to understand the underlying technology of patents. Faith not reason.
The video never asks if Austin Meyer did a patent search and clearance opinion before building and selling his software. You would not build a house without doing a title search to make sure you owned the land. Given Mr. Meyer’s surprise that he was being sued for patent infringement, he almost certainly did not undertake this simple due diligence step.
Using Other Peoples’ Property
Mr. Meyer complains that he may have to pay the patent holder for the life of his product. Yes, that is what happens when you use someone else’s property. This is like a steel manufacturer complaining that they have to continue to pay for coal or pay rent for a building they do not own.
Note that the underlying technology is critical to Mr. Meyer getting paid, but he doesn’t want to pay for it.
The anti-patent crowd always complains that these suits are brought in East Texas. If someone refused to pay you rent for staying in your house, would you chose the slowest court in the country or a faster court? Federal Court for the Eastern district of Texas has been one of the fastese to bring invention squatters to justice.
The video makes the implicit assumption that non-practicing entities (NPE) are evil. However, Edison was a NPE, as was Tesla, as was almost every great inventor in the last 200 years, as our most major corporations, as most of our Universities and Government labs. Our Founders looked at the issue of requiring inventors to practice their invention in order to keep their patent and rejected it. They voted for a FREE MARKET system where people could be independent inventors, just like writers do not have to be publishers in order to obtain or keep their copyrights. This is consistent with Adam Smith’s division of labor theory.
The video takes the stand that if you buy the patent rights instead of being the inventor,this is somehow evil. First, all corporations buy their patents – often by paying wages. Corporation don’t invent so they have to buy their patents. Second, we do not argue just because you didn’t build your house you cannot rent it out .
Mr. Meyer states in the video that the technology he wants to use is old, from the 80s. If this were true, Mr. Meyer would be free to use it. But, instead, he wants the updated version of the technology that ensures he gets paid, he just doesn’t want to pay for it.
The Patent Should Not Have Issued
Neither Mr. Meyer nor the so called expert, Julie Samuels, are patent attorneys. They are NOT QUALIFIED to evaluate the scope of the claims of a patent. It is interesting how lay people (I include attorneys who are not patent attorneys in this definition) believe they can just read a patent and evaluate it, but they would never try to do the same thing with a Warranty Clause in a contract or an Indemnity Clause. No one would believe a Journalism major or an attorney (non-technical) is qualified to comment on software technology; but somehow they are qualified to comment on patents on software? This is like asking a plumber to comment on the design of a Nuclear Power Plant.
Patents and the Free Market
Patents are property rights, just like a property right in a farm. The basis for all property rights is creation. Inventions are clearly creations. Property rights are part of the free market. Those countries that are the freest economically have the strongest patents laws, are the most innovative, and have the highest standards of living. REASON MAGAZINE is pushing a point of view that is much more consistent with a Marxist’s labor theory of value than Capitalism.
REASON MAGAZINE is neither promoting REASON or FREE MARKETS in posting this video.
It is common for people and economists to state that patents are a monopoly. Because patents are a monopoly, it is argued that they negatively affect the pace of innovation and slow down the diffusion of inventions. The only redeeming feature of patents they concede is that if provides a profit incentive to invent, but then it inhibits follow on inventions and the dissemination of knowledge. If this thesis is correct, it should be testable. Let’s test this hypothesis.
1) Countries with strong patent systems should innovate less than countries with weak patent systems.
2) Countries with strong patent systems should have slower dissemination of new technologies than those countries with weak patent system.
If PROPERTY RIGHTS
1) Countries with the strongest patent systems should innovate more than countries with weak patent systems.
2) Countries with strong patent systems should have faster dissemination of new technologies than those countries with weak patent system.
Let’s take a look at the facts, according to the World Intellectual Property Organization (WIPO), the top ten most innovation countries and the bottom 10 countries for 2012 are:
5. United Kingdom
8. Hong Kong (China)
10. United States of America
132. Syrian Arab Republic
134. Cote d’Ivoire
138. Lao PDR
In a report from National University of Singapore they show a chart of the Fraser index vs. Ginarte-Park index. The Fraser Index is a ranking of economic freedom and the Ginart-Park index is a ranking of patent strength. The chart shows an almost perfect correlation between the two. For those of you who are not familiar with economic freedom indices, there are several and they all show that economic freedom correlates positively with economic growth, wealth, education access, health, longevity, the environment, civil rights, etc.
They also had a couple of charts for the countries with the strongest patent systems for four different years and those with the weakest patent systems. I do not know all the countries that were included in this survey.
|U.S.A. 39.30||U.S.A. 39.06||U.S.A. 39.06||U.S.A. 42.75|
|Netherlands 28.20||Belgium 32.23||Belgium 36.22||Netherlands 41.36|
|Switzerland 28.12||Netherlands 31.47||Netherlands 35.22||Denmark 41.26|
|Germany 28.01||Switzerland 30.55||U.K. 33.57||Finland 41.01|
|Japan 27.14||Germany 28.73||Germany 33.14||U.K. 40.15|
|Nicaragua 2.38||Nicaragua 2.38||Guyana 3.17||Niger 5.38|
|Peru 2.22||Bolivia 2.30||Pakistan 3.17||Guatemala 5.10|
|Guatemala 1.90||Guyana 1.69||Jordan 2.95||Nicaragua 5.00|
|Guyana 1.78||Guatemala 1.50||Guatemala 2.15||Rwanda 4.64|
|Jordan 1.72||Peru 1.31||Peru 1.73||Zaire 3.51|
If we examine the first postulate, does it appear the most innovative countries have the strongest patent systems or the weakest patent system? Which countries do you think have the strongest patent systems – the USA, Singapore, Switzerland or Niger, Pakistan, Sudan? It is clear that the most innovative countries according to the WIPO survey have the strongest patent systems. If we look at the charts from the National University of Singapore (NUS) we see those countries with the strongest patent systems are clearly the most innovative. Although the WIPO data and the NUS data are from different time frames we see some overlap between those countries with the strongest patent systems (NUS) and the most innovative (WIPO) and the same is true for the weakest and least innovative.
If we examining the second postulate, does it appear that the countries with the most technology diffusion have the strongest patent systems or the weakest patent system? Which countries do you think have the most technology diffusion – the USA, Singapore, Switzerland or Niger, Pakistan, Sudan? It is clear that those countries with the strongest patents have the most technology diffusion.
The macroeconomic evidence does not support the thesis that patents are a monopoly. The data shows the exact opposite of what this theory predicts.
The empirical evidence is overwhelming that patents are a PROPERTY RIGHT not a MONOPOLY.
I have written extensively on whether the defining characteristics of a patent are consistent with the definition of a monopoly or the definition of property rights. For instance see:
This post explains the characteristics of a monopoly and a property right and poses three questions to show the difference. Patents fit all the characteristics of a property right and none of a monopoly. Note that professional license, such as a law license has some of the characteristics of a monopoly.
This post contains a number of quotes from philosophers explaining that patents are not monopolies.
This post explains the difference in the concepts of property rights, possession, and objects. Most economists and patent detractors confuse these concepts. The origin, definition, and legal basis of property right are explained.
This post compares the definition of a monopoly to the rights obtained with a patent. It shows that the rights obtained with a patent do not confer a monopoly.
The only way to suggest that patents are a monopoly is define “market power” so broadly that any property rights confer market power. I admit that I reject this argument. A property right is not a monopoly and this is an attempt by people with a political agenda to attack the concept of property rights.
PATENTS are PROPERTY RIGHTS under the law, by definition, and according to all statistically significant macro-economic evidence. People who suggest otherwise are pushing a political agenda or do not understand the definition of the words monopoly and property rights.
There appears to be considerable confusion differentiating property rights, possession and objects in the economics including academic papers. Property rights are a moral and legal concept. Historically, the moral reason for property rights is based on the natural rights concept that you own yourself and therefore you own the product of your labor, both physical and mental. Property rights in an object mean that you have a legal title to an object, which gives you the right to exclude others from using the object in which you have title. This is exactly the same whether the property right is in the object of land, chattel, inventions, or writings. Continue reading
A number of scholars have suggested that the logical basis for tangible property rights is scarcity. Property rights efficiently allocate these resources and avoid conflicts between competing rights of individuals. These scholars argue that ideas and invention are not subject to scarcity and therefore intellectual property rights should not exist. These arguments seem to be particularly prevalent among Libertarians, including the Cato Institute and Von Mises Institute, and the open source community. Continue reading
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