I just noticed that the latest version of Cato Policy Report, Cato’s bimonthly newsletter, contains edited excerpts from three of the best presentations at March’s copyright conference. Here’s Jim Harper on the philosophical foundation of intellectual property:
John Locke gave us the best explanation for how we divvy up things in the physical world: by mixing our labor with something, we make it ours. If you imagine a Garden of Eden or an original place with plentiful common property, the way you make property your own is by mixing your labor with it, by tilling soil, by plucking an apple from a tree, and so on.
It’s a happy coincidence, of course, that ownership of property puts us in a position to trade goods with one another. So that if I’m particularly good at collecting apples from trees and Drew is particularly good at collecting fish from streams, we can trade apples for fish and have wonderful meals of apple fish pie.
So property rights have a strong utilitarian basis. They do change on the basis of their utility and their efficiency, but essentially, property rights in tangible goods are there so that people play well together in the context of scarcity. When they can’t share physical items, property rights help people to work together.
Intellectual property is not similarly scarce. We can all take bites out of the same intellectual apple without bumping into one another or making a mess. We don’t even have to know about each other to feast on the same intellectual apple. So the starting point, the original explanation for intellectual property, is different.
The question then is: What is intellectual property? Where does it come from? What is the original explanation? I’m of the mind that the Lockean explanation is just as good for intellectual property as it is for tangible property. Ideas and expressions and inventions are all the product of mixing our labor, in this case our mental labor, with the common property of preexisting ideas and information. So when we set out to design a new kind of vehicle, just as when begin to eat a bowl of Wheaties in the morning, we’re creating new information. We’re creating new ideas. And we’re creating what could be called intellectual property…
I think that if we somehow retained exclusive rights to the facts we create every day, that would turn society on its head. You would be violating my rights if you spoke later today about something that I had said. That would be a fact, certainly a fact I’ve created, but it’s one that you haven’t stolen from me. Rather, I think the better explanation is consistent with property rights: the idea that almost from the moment many facts are created, they’re abandoned.
While the default rule in physical property is exclusivity, the default rule in personal information is that what is observable by others is public.
We designate some of the facts we create intellectual property because we’ve decided that, for good, functional, utilitarian reasons, we should protect people’s property rights in those facts even when they’re available to others. Under copyright and patent laws, we have said that you can put out information and make it available to the public, but you don’t lose exclusivity entirely. Intellectual property law is essentially a determination by society that we’re better served by having rules that give incentives to create and distribute particular types of human-created information.
The other two speakers’ comments are equally interesting.