By Jan Clifford Lester

intellectual property  To avoid possible confusion, please note that this entry is not a discussion of what any ^*state ^*law on intellectual ^*property (IP) actually says or does. It is about the application of this book’s ^*libertarian theory to the concept of IP.

It is sometimes asserted that people only ever own, and conceivably can only ever own, specific rights of use concerning the expression of an idea rather than own the intellectual object itself. However, one could equally well assert something analogous, and more obviously erroneous, of a physical object: “people only ever own, and conceivably can only ever own, specific rights of use concerning a physical object rather than own the physical object itself.” But to own the rights of use just is to own the physical object itself. And, therefore, to the extent that there is the protected use and control of an intellectual object by someone, there seems no valid reason to deny that this is owning that intellectual object or, partly for brevity, ^*meme.

Some memes might be independently discovered or created (most patented ideas: usually someone else would eventually have come up with the idea) and some are not (most copyrighted works: no one would have written the same novels if Charles Dickens [1812-1870] had not done so). This distinction matters because anyone’s IP that is allowed to extend beyond likely independent discovery or creation is thereby likely to ^*proactively impose on other people. Conversely, that others are not worse off than if some example of IP had never been created, appears to show that IP does not proactively impose inherently (or at least one person would always be worse off as a result of the IP). If it were somehow naturally impossible to use an idea without its creator’s permission, then people would be unlikely to complain that they were proactively imposed on by this—as they would see that they were not. Thus one defense of IP is that it is ^*libertarian to allow it, and unlibertarian to disallow it, up until any likely independent production would emerge, if it ever would. It would be shared with any who could demonstrate that they probably would have eventually become independent creators of it. When all claims run out, it becomes ^*common property by entering the public domain. Some kind of ^*impartial decision or arbitration process, taking account of the pace at which relevant memes are produced, might therefore be needed to determine the likely time limit in each case. It would also need to decide how dissimilar from a particular idea would still count as using that idea, and decide on some conception of fair usage (e.g., would discussing, parodying, or satirizing it count?), and how this affects a gift, sale, rental, or loan that that was not authorized by the IP holder.

Intellectual property is controversial among libertarians. Many are skeptical or critical, including for some of the following significant (but not exhaustive or collectively consistent) reasons.

1) It is a ^*state ^*monopoly and widely abused.

2) It prevents people from doing what they like with their own physical property.

3) If you don’t want people to know about your ideas, then you can simply keep them secret (as happens with some ingredients for commercial food and drink products, for instance).

4) Ideas are not finite, as the physical world is, so IP does not help to deal with the problem of ^*scarcity, as physical property does, but actually creates an artificial scarcity.

5) A sufficient amount of intellectual production can be stimulated simply by the ^*profitability of being the first to ^*market.

6) ^*Contracts with purchasers, not to copy, etc., can produce sufficient protection to make intellectual production profitable.

7) Technological devices can ^*legitimately help to prevent copying. And taking the particular libertarian theory outlined above, we might also add the following two points.

8) Suppose someone sells a product in a new geographical area, or markets a product in a new way, then it seems that the innovator could claim a form of IP not to be copied in that way that would thereby interfere with the normal, apparently libertarian and efficient, parts of market competition.

9) I paint my house blue and you want to copy me: should I be allowed to forbid this or charge you? Could it be libertarian or efficient to have ownership of such trivial ideas?

Taking these nine criticisms in order, libertarian IP might be defended along the following lines.

1) There is no necessity for the state to be the ^*organization that enforces IP. And the fact that state IP has often been abused does not reflect badly on private enforcement. IP is only a ‘monopoly’ in the same sense as owning any single physical thing (see 4).

2) You cannot do what you like with your own property when it interferes with the property of others. It merely denies the thesis without an argument to assert that you are doing nothing to anyone else’s property by copying someone’s book, thereby using his ideas, and selling your own physical versions. If IP is libertarian, then you are using his intellectual property as though it were your own.

3) Keeping ideas secret often means not using them. In such cases, advising secrecy is analogous with saying, ‘If you don’t want people to steal from your stall, then don’t take your produce to market.’

4) Each idea is a single thing in the memetic realm (what Karl Popper [1902-1994] calls World Three), and thus is scarce. Examples or uses of the idea in other minds (World Two) or the physical world (World One) are not the idea itself. If you can use my idea as you wish when I would rather own it, then I am as proactively imposed on as if you used my physical property against my wishes. I might not know that you have used my IP or that I have suffered a financial loss. But that is also true of any physical property of mine. In both cases there is an ^*objective ^*trespass involving another’s particular resource. It might still be objected that I am free to use the idea as much as I like, and so I am not constrained in any way. But I am not free to use the idea in the sense of deciding what is done with it. Admittedly, there is no scarcity with the use of good ideas unless we allow restrictions by using such things as secrecy, purchaser contracts, technological devices, or IP. But there is a scarcity of good ideas themselves. And all the restrictions tackle that scarcity, without worsening anyone’s ex ante situation, by rewarding the creation of good ideas.

5) Physical property internalizes ^*externalities and strongly tends thereby to be optimally ^*economic and libertarian. The same seems true of IP. To expect an inventor of an idea to have sufficient incentive merely by being first to market is significantly like expecting the creator of a physical product to sell what he can before people discover where his factory or farm is and can then simply take what they want from it without his ^*consent. And even where it is still profitable, it will often be insufficiently profitable to stimulate an economic amount of production (setting aside the practical and theoretical problems of estimating this and of comparing different systems for efficiency).

6) If every relevant product is sold subject to the contract that no user can copy it without permission then that stops copying—using the ideas—by all customers. But what if a non-customer can see, or find out, how something works or what it looks like? We can have no such contract with the observer. With certain memes this could undermine all or most of the economic incentive to produce it. And, as before, even where it is still profitable it might not be optimally economic. To expect the creator of an idea to protect his idea by contract is like expecting the homesteader of some land to protect his land by contract with every other person.

7) Technological devices that restrict using other’s ideas add expense. If they could somehow be made perfect for all products, then we would simply be back to a situation analogous with the natural impossibility of using other’s ideas—but with all the added expense. If such anti-copying devices are in principle fine without limit, then why not simply allow the cheaper option of having IP in the first place?

8) It is not clear that starting a new market practice should not be protected in this way if protection is claimed, subject to likely independent invention. Counter-intuitive though this may be, this would appear to internalize externalities and thus would tend to be libertarian and efficient.

9) Any IP ownership needs to be claimed; and it cannot clash with any existing contracts, such as what and how house colors are allowed on, say, some privately run estate. It is not likely that many people would want to claim what is trivial. But such things are, after all, only trivial. In any case, we still have the limit of likely independent invention.

In short, IP is an extension of property into the memetic realm for relevantly and sufficiently similar economic reasons, rather than perfect analogies, as to why it is libertarian and economic in the physical realm. It must have appeared strange when people first attempted to fence off land and claim exclusive rights of use. They had not, after all, even created the land. But those who claim IP have at least created it, albeit in the framework of a pre-existing culture. To reject IP is to be for ^*communism in the realm of ideas. Admittedly, however, this could not be anywhere near as disastrous as communism in the physical realm. Of course this libertarian defense of IP could well be mistaken, but it appears to give reasonably cogent answers to the listed current criticisms of IP. It ought, at least, to clarify and develop the debate to attempt to refute it.

All that being said, patents, copyrights, and trademarks are the most notable forms of IP recognized in the world today. So how far are they congruent with the previous theory? They approximate to varying degrees in various different cases. Thus in some cases they are significantly better than nothing (from libertarian and ^*utilitarian perspectives) and in other cases they are significantly worse. But if the theory provided here is substantially correct, then even within a ^*statist framework they could be ameliorated. However, this could not hope to match an ^*anarcho-libertarian framework. In either case, I hereby claim IP in this theory of IP.

From A Libertarian Dictionary: Explaining a Libertarian Theory (forthcoming), J C Lester