After the non-aggression axiom, the right to own property has always been high on the list of fixations of those of a libertarian instinct. How property is defined, however, has been a matter of much debate, particularly with regard to “intellectual property”.
On the one hand, Ayn Rand wrote that “patents and copyrights are the legal implementation of the base of all property rights: a man’s right to the product of his mind” whilst, on the other, Roderick Long considers that “prohibiting people from using, reproducing, and trading copyrighted material is an infringement of freedom”.
So who is right?
Well, there are two strands to the debate and the first is to question whether intellectual property rights help or hinder progress. And I would argue they usually hinder.
Supposing, for example, someone discovers that cold fusion occurs when Dettol is mixed with HP sauce (original recipe).
Would the world be better served if he patented the formula and spent the next twenty years trying to develop it himself or would progress be quicker if he made the information available to all manufacturers to compete in developing the best DHPS generator?
And would it then help or hinder progress if the company who devised a working generator patented the design and prevented their competitors from building similar machines?
There is a real historical example of this happening when James Watt took out patents on the basic design of the steam engine and found they didn’t help much.
“Ironically, not only did Watt use the patent system as a legal cudgel with which to smash competition, but his own efforts at developing a superior steam engine were hindered by the very same patent system he used to keep competitors at bay.
An important limitation of the original Newcomen engine was its inability to deliver a steady rotary motion. The most convenient solution, involving the combined use of the crank and a flywheel, relied on a method patented in 1780 by James Pickard, which prevented Watt from using it. Ironically, Watt also made various attempts at efficiently transforming reciprocating into rotary motion, reaching, apparently, the same solution as Pickard.
But the existence of a patent forced him to contrive an alternative less efficient mechanical device, the “sun and planet” gear. It was only in 1794, after the expiration of Pickard’s patent that Boulton and Watt adopted the economically and technically superior crank.“
And thus the 18th century technological revolution was significantly delayed.
But the second strand of the debate is to ask whether a lack of IP protection is equitable – to companies who have invested in research and to individuals who have had their work copied.
Let’s take music as an example because, in music, there has been no effective protection of copyright since recording it became possible and, in the internet age, it is ludicrous to try to pretend that IP rights can be enforced.
Yet, even without any real protection, good musicians can still earn an excellent living and it is the big corporations that have lost out. Indeed, we have arguably never had a more interesting and vibrant music scene since the advent of file sharing- low barriers to entry for new artists and established bands producing live music, rather than relying on revenue from recordings.
Do we really want to go back to the days when record company executives devised and manufactured the “next big thing”?
But what about the lack of incentive for companies to develop new products if the profits cannot be protected? Would the new wonder drug that cures cancer be discovered at all if the results of research could not be patented and the company concerned reap the rewards?
On the other hand, is it ever reasonable that the patent holder of a new drug allows millions to die whilst they price it for the treatment of the very few that can afford it?
Not easy questions and it may be that, in a world without IP protection, there would be less total money spent on medical research (though I also think that the drugs market is skewed because of state involvement in healthcare provision and the regulation of medicines).
Anyway, perhaps inspired by the relative anarchy of the internet and the perceived need to defend it, it seems that anti protectionist views are gaining currency and, in Germany, the Pirate Party recently won 9% of the vote and 15 seats in the Berlin state parliament.
Absolutely astonishing for a party only founded in 2006.
Their platform is the preservation of rights in telephony and on the internet. In particular they oppose the European retention policies and Germany’s new internet censorship law. They also oppose artificial monopolies and various measures of surveillance of citizens.
I think I could vote for that.