A Philosophy of Intellectual Property

Peter Drahos

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781351962087
• Edition: 1
• Topic: Law
• Subtopic: Intellectual Property Law
• Index: Law

Are intellectual property rights like other property rights? More and more of the world's knowledge and information is under the control of intellectual property owners. What are the justifications for this? What are the implications for power and for justice of allowing this property form to range across social life? Can we look to traditional property theory to supply the answers or do we need a new approach? Intellectual property rights relate to abstract objects - objects like algorithms and DNA sequences. The consequences of creating property rights in such objects are far reaching. A Philosophy of Intellectual Property argues that lying at the heart of intellectual property are duty-bearing privileges. We should adopt an instrumentalist approach to intellectual property and reject a proprietarian approach - an approach which emphasizes the connection between labour and property rights. The analysis draws on the history of intellectual property, legal materials, the work of Grotius, Pufendorf, Locke, Marx and Hegel, as well as economic, sociological and legal theory. The book is designed to be accessible to specialists in a number of fields as well as students. It will interest philosophers, political scientists, economists, legal scholars as well as those professionals concerned with policy issues raised by modern technologies and the information society.

1 Introduction

A lot has been written about the theory of property. Property has been and remains one of the bedrock subjects of social science theorizing. In its rights form (the idea that property is a bundle of rights¹) property continues to be a key target for philosophical analysis. While the literature on property is vast, relatively little of it has explicitly dealt with intellectual property. It may be that the assumption has been that any general theory of property illuminates all property forms, including intellectual property. Perhaps this assumption is correct and perhaps not. Like other property rights, intellectual property rights are relations between individuals. Unlike real property law, intellectual property law posits rights in abstract objects. An algorithm and the formulae for penicillin and its derivatives are examples of abstract objects. Many people need, use and depend on such objects. Many of the relationships of interdependence that characterize social life and work in modern 'on-line' societies are linked to such objects. A property form that allows private hands to capture important abstract objects creates, amongst other things, many person-dependent relationships in a society. It swells the growth of private power. The negative liberty of individuals, the right not to be interfered with, faces greater dangers. There is a lot at stake when property extends its reach to abstract objects. For these reasons at least it seems worth asking whether we can accommodate intellectual property within one or more of the existing general accounts of property or whether we should develop a distinctive theory of intellectual property.

This book represents the beginnings of an answer to this question. It takes the writings of three important thinkers on property, Locke, Hegel and Marx, and concludes, not surprisingly, that these writings help us to understand a great deal about the phenomenon of intellectual property. No comprehensive theory of intellectual property is proposed here. Instead the final chapter argues that a philosophical attitude of instrumentalism should be our guide in constructing interdisciplinary approaches and theories of intellectual property. Amongst other things, this means that in the case of intellectual property the language of privilege should replace the existing language of property rights. Privilege-bearing duties, the final chapter argues, should form the core of intellectual property theory.

Some Distinctions

Theorizing within the liberal tradition about property has usually taken the form of theorizing about property rights. This treatment of property as a species of rights has, predictably, resulted in a considerable cross-pollination between general rights theory and property theory. It has led to questions like: are all rights property rights?² There are some distinctions which inquiries within rights based property theory typically use to demarcate their scope and subject matter. The classifying distinctions are those between the ontological, linguistic, analytical (or conceptual) and normative. We need quickly to say something about where the present work stands in relation to these distinctions. But first a word about the distinctions themselves.

Ontological analyses focus on the question of whether rights exist and, if so, in what way. The debate over the existence of natural rights or natural rights of property is an example of an ontological issue. Linguistic approaches try to settle the meaning of property or right by reference to the meanings and distinctions to be found in ordinary language use.³ It is hard to distinguish between linguistic and analytical approaches in a short space.⁴ Very roughly, we might say that analytical approaches do not confine themselves to ordinary language as a resource but propose and construct, under the restraints of reason and established deductive techniques, various stipulative distinctions and models of the concepts under scrutiny. Analytical approaches tend to focus on the logical qualities of concepts like property and right. They strive through the process of definition and conceptual analysis for a better model, or structural and relational understanding of a concept. Working analytically, philosophers ask questions such as who can have rights and under what conditions? They draw distinctions between, for example, what it is to have a right and what rights we ought to recognize. An example of a very influential analytical approach in the rights and property area is Hohfeld's model of rights as a set of jural correlatives, contradictories and contradictories of correlatives that is, between interdefinable concepts such as right, duty, privilege and no-right.⁵ (We will discuss the scheme and its implications for intellectual property in Chapter 7.) Finally, normative approaches in property and rights theory bring into play values in one way or another so as to reach ought conclusions of some kind. They concern themselves with either prescription or justification. Rules of conduct are proposed or defended.

Much of normative property theory has examined the justifiability of the right of private property.⁶ The preoccupation with this particular enterprise is not just modern. Like most philosophical questions, it has a history. The continuing interest in private property stems from an inquiry that mattered to those working in the natural law tradition. It consisted of the search for the origin and foundation of the right of property.

For natural law theorists, an investigation into the origins of property could have threatened the legitimacy of all established individual property holdings. That such a revolutionary conclusion might have been possible came from taking the existence of God and the contents of the Bible seriously. Blackstone in his Commentaries nicely captures the nature of the problem. He points out that, strictly speaking, 'there is no foundation in nature or in natural law, why a set of words upon parchment should convey the dominion of land'.⁷ In the Christian God-centred universe this problem was especially worrying because there was no doubt that God had given the earth to its inhabitants in common. How then could one justify the 'sole and despotic dominion' which individual proprietors in the world had come to exercise over its contents?⁸ Actually, Blackstone does not use the word 'justify'. Rather, he assumes that private ownership, which is widespread and widely accepted by the general populace, is something that requires explanation. Private property is a phenomenon that law, operating as a rational science, must explain.

The importance of this explanatory mode of analysis in the natural law theories of property can be seen in Grotius' discussion of property. For Grotius, one of the causes of war is injury to those things which belong to us.⁹ This leads him to investigate the conditions under which something can be said to belong to somebody, which in turn leads him to state that 'it will be necessary to know the origin of proprietorship'.¹⁰ The knowledge which Grotius has in mind is historical knowledge. Drawing on 'sacred history', poets and philosophers, he proceeds to give a description of the way private ownership evolved out of the world which God had given to men in common.¹¹ This historical investigation establishes certain fundamental principles. These are used by Grotius to generate specific prescriptive conclusions (rights to the sea, the rights of refugees and so on). At least in Grotius the natural law theory of property has both explanatory and justificatory aims.

Over time, the emphasis on providing an explanation from factual axioms for the origin of the right of private property has, within the context of first order ethical theorizing, faded. The interest in providing a justification for the right of private property – in offering an account of the legitimacy of acquiring property – has remained strong. The task of explaining the origin of property rights seems to have become the province of the empirical sciences such as psychology, sociology and economics.¹²

With this brief sketch of some of property theory's fundamental distinctions in place, we can now set out the way in which this book develops its analysis of intellectual property. The analytical parts of the present work rest on some assumptions. Two crucial ones need to be specified at the outset. First, analytical property theory takes property in its rights form as the object of conceptual analysis. The object of clarification is the right of property (sometimes used interchangeably with the right of ownership). Following Hohfeld, we shall not treat rights as a base term, but as a generic term which can be decomposed into a series of more fundamental categories. Rights, including property rights, have a logical architecture. This logical architecture takes the form of a deontic logic.¹³ There is more than one deontic logic to choose from in specifying an architecture for property rights.¹⁴ Within property theory, Hohfeld's system is usually chosen to do the job.¹⁵ This fashion is followed here.

The view that property is a thing is nowadays seen as quaint and false, or at least not helpful. Property is thought to be a rights relation between one person and another (that is, a single-place relation) or between one person and many others (a many-place relation).¹⁶ Property is a contest for the control of objects that people need or want and sometimes upon which their very survival, either individually or as a group, depends. As Honoré reminds us, 'the idiom which directly couples the owner with the thing owned is far from pointless; where the right to exclude others exists, there is indeed (legally) a very special relation between the holder of the right and the thing'.¹⁷

Without further argument, our second assumption is that property rights entail relations between two people and between a person and an object, in the case of intellectual property law, the objects in question are abstract objects. As it happens, abstract objects do not exist, or so we claim. Abstract objects in intellectual property law take the form of a convenient legal fiction. The argument for this is to be found in Chapters 2 and 7. The psychological operation of this fiction is probably best explained in terms of a theory of performative utterances, but this is not a matter we pursue here.¹⁸

Many texts on intellectual property law begin by saying something about the definition of intellectual property.¹⁹ Definitions can proceed by extension or intension. An extensional definition of intellectual property would list certain traditional core areas of intellectual property: copyright, patents, trademarks, designs, protection against unfair competition and the protection of trade secrets. (A brief explanatory note of these areas is contained in the last section of this introduction.) Over time new subject areas have appeared on this list. Protection for integrated circuits and plant varieties are two examples.²⁰ Intensional definitions of intellectual property are harder to formulate.²¹ We shall say that intellectual property rights are rule-governed privileges that regulate the ownership and exploitation of abstract objects in many fields of human activity. This definition is more a conceptual conclusion. It rests on a particular theoretical view of intellectual property that is presented in the following chapters.

The normative conclusion to which the argument in this book leads is that intellectual property rights are liberty-intruding privileges of a special kind. It is argued that they promote factionalism and dangerous levels of private power. From the point of view of distributive justice, their scope should be limited. The way to think about such rights is through the lenses of a naturalistic empiricism. The arguments for these claims are to be found in Chapters 6, 7, 8 and 9. There is in this book no attempt to search for a new justification for private property. As Epstein observes, the 'desirability of private property has been endlessly debated across the disciplines'.²² There is no shortage of coherent philosophical proposals in favour of private property. There may be, as Becker has recently suggested, too many.²³ Perhaps, as Becker hints, we should be more concerned with the empirically determinable consequences of private property in various areas of social life than with multiplying the available number of moral justifications for private property. There are strong reasons for supporting private property rights, but we should do so in a contingent, consequentially minded way. If it turns out that intellectual property rights, a species of private property rights, stimulate patterns of organization and practices ...