## 1. History of Intellectual Property



One of the first known references to intellectual property protection
dates from 500 B.C.E., when chefs in the Greek colony of Sybaris were
granted year-long monopolies for creating particular culinary
delights. There are at least three other notable references to
intellectual property in ancient times--these cases are cited in
Bruce Bugbee's formidable work *The Genesis of American
Patent and Copyright Law* (Bugbee 1967). In the first case,
Vitruvius (257-180 B.C.E.) is said to have revealed intellectual
property theft during a literary contest in Alexandria. While serving
as judge in the contest, Vitruvius exposed the false poets who were
then tried, convicted, and disgraced for stealing the words and
phrases of others.



The second and third cases also come from Roman times (first century
C.E.). Although there is no known Roman law protecting intellectual
property, Roman jurists did discuss the different ownership interests
associated with an intellectual work and how the work was
codified--e.g., the ownership of a painting and the ownership of
a table upon which the painting appears. There is also reference to
literary piracy by the Roman epigrammatist Martial. In this case,
Fidentinus is caught reciting the works of Martial without citing the
source.



These examples are generally thought to be atypical; as far as we
know, there were no institutions or conventions of intellectual
property protection in Ancient Greece or Rome. From Roman times to the
birth of the Florentine Republic, however, there were many franchises,
privileges, and royal favors granted surrounding the rights to
intellectual works. Bugbee distinguishes between franchises or royal
favors and systems of intellectual property in the following way:
franchises and royal favors restrict access to intellectual works
already in the public domain, thus these decrees take something from
the people. An inventor, on the other hand, deprives the public of
nothing that existed prior to the act of invention (Bugbee 1967). One
of the first statutes that protected authors' rights was issued
by the Republic of Florence on June 19, 1421, to Filippo Brunelleschi,
a famous architect. This statute not only recognized the rights of
authors and inventors to the products of their intellectual efforts;
it built in an incentive mechanism that became a prominent feature of
Anglo-American intellectual property protection. For several reasons,
including Guild influence, the Florentine patent statute of 1421
issued only the single patent to Brunelleschi. The basis of the first
lasting patent institution of intellectual property protection is
found in a 1474 statute of the Venetian Republic. This statute
appeared 150 years before England's Statute of Monopolies;
moreover, the system was sophisticated. The rights of inventors were
recognized, an incentive mechanism was included, compensation for
infringement was established, and a term limit on inventors'
rights was imposed.



American institutions of intellectual property protection are based on
the English system that began with the Statute of Monopolies (1624)
and the Statute of Anne (1710). The Statute of Monopolies granted
fourteen-year monopolies to authors and inventors and ended the
practice of granting rights to "non-original/new" ideas or
works already in the public domain. In contrast to patent institutions
in Europe, literary works remained largely unprotected until the
arrival of Johannes Gutenberg's printing press in the fifteenth
century. Even then there were few true copyrights granted--most
were grants, privileges, and monopolies.



The Statute of Anne (1710) is considered by scholars to be the first
statute of modern copyright. The statute begins:



> 
> "Whereas printers, booksellers, and other persons have lately
> frequently taken the liberty of printing, reprinting, and publishing
> books without the consent of the authors and proprietors ... to
> their very great detriment, and too often to the ruin of them and
> their families: for preventing therefore such practices for the
> future, and for the encouragement of learned men to compose and write
> use books, be it enacted ..." (Great Britain, *Statute
> of Anne*, 1710)
> 



The law gave protection to the author by granting fourteen-year
copyrights, with a fourteen-year renewal possible if the author was
still alive.



In the landmark English case *Miller v. Taylor* (1769), the
inherent rights of authors to control what they produce, independent
of statute or law, was affirmed. While this case was later overruled
in *Donaldson v. Becket* (1774), the practice of recognizing
the rights of authors had begun. Over the following decades other
European countries, including Belgium, Holland, Italy, and
Switzerland, followed the example set by England (Bugbee 1967).
Various international treaties like the Berne Convention treaty and
the Trade-Related Aspects of Intellectual Property (TRIPS 1994)
agreement have expanded the geographic scope of intellectual property
protection to include most of the globe.


## 2. The Domain of Intellectual Property



At the most practical level, the subject matter of intellectual
property is largely codified in Anglo-American copyright, patent, and
trade secret law, as well as in the moral rights granted to authors
and inventors within the continental European doctrine. Although these
systems of property encompass much of what is thought to count as
intellectual property, they do not map out the entire landscape. Even
so, Anglo-American systems of copyright, patent, trade secret, and
trademark, along with certain continental doctrines, provide a rich
starting point for understanding intellectual property (Moore 1998a).
We will take them up in turn.


### 2.1 Copyright



The domain of copyright protection is original works of authorship
fixed in any tangible medium of expression (17 U.S.C. SS102
(1988)). Works that may be copyrighted include literary, musical,
artistic, photographic, architectural, and cinematographic works;
maps; and computer software. First, for something to be protected, it
must be fixed in a permanent or tangible medium of expression.
 For example, an expression could be chiseled into stone,
printed in a book, or saved on a hard drive. Second, the work
must be "original"--the work must be the
author's own production; it cannot be the result of copying
(*Bleistein v. Donaldson Lithographing Co*., 188 U.S. 239
(1903)). Third, copyright does not extend to short phrases, titles, or
names as these to do not contain the minimum amount of authorship
required by copyright. A fourth requirement that limits the
domain of what can be copyrighted is that the expression must be
"non-utilitarian" or "non-functional" in
nature. Utilitarian products, or products that are useful for work,
fall, if they fall anywhere, within the domain of patents. Finally,
rights only extend over the actual concrete expression and the
derivatives of the expression--not to the abstract ideas
themselves. For example, Einstein's Theory of Relativity, as
expressed in various articles and publications, is not protected under
copyright law. Someone else may read these publications and express
the theory in her own words and even receive a copyright for her
particular expression. Some may find this troubling, but such rights
are outside the domain of copyright law. The individual who copies
abstract theories or ideas and expresses them in her own words may be
guilty of plagiarism, but she cannot be held liable for copyright
infringement.



There are five exclusive rights that copyright owners enjoy, and three
major restrictions on the bundle. The five rights are: the right to
reproduce the work, the right to adapt it or derive other works from
it, the right to distribute copies of the work, the right to display
the work publicly, and the right to perform it publicly. Under U.S.
copyright law, each of these rights may be individually parsed out and
sold separately by the copyright owner. All five rights lapse after
the lifetime of the author plus 70 years--or in the case of works
for hire, the term is set at 95 years from publication or 120 years
from creation, whichever comes first. Aside from limited duration (17
U.S.C. SS302), the rules of fair use (17 U.S.C. SS107) and
first sale (17 U.S.C. SS109(a)) also restrict the rights of
copyright owners. Although the notion of "fair use" is
notoriously hard to spell out, it is a generally recognized principle
of Anglo-American copyright law that allows anyone to make limited use
of another's copyrighted work for such purposes as criticism,
comment, news reporting, teaching, scholarship, and research. For
example, fair use would cover a student using short quotes of
copyrighted material for academic purposes. The "first
sale" rule prevents a copyright holder who has sold copies of a
protected work from later interfering with the subsequent sale of
those copies. For example, a copyright holder could not place, as a
condition of sale, that the work in question never be given to a
library or thrift shop. In short, the owners of copies can do
what they like with their property, short of violating the copyrights
mentioned above.



Additionally, copyright does not preclude independent creation (unlike
patents). For example, if Smith creates a short poem and
Jones independently creates the exact same poem. Both could
obtain copyrights to their original expressions.


### 2.2 The Creative Commons, Copyleft, and Licensing



As a modern workaround for the first sale rule, many online content
providers, rather than selling a copy of a work, simply offer
licensing agreements (through click-wrap, shrink-wrap, etc.) that
allow only specific uses of protected content. These approaches to
protecting intellectual works are relatively new and seemingly build
upon the copyright systems already in place. For example, by using
licensing agreements to guarantee different levels of downstream
access, the Creative Commons and Copyleft models seek to expand the
commons of thought and expression (Stallman 1997; Lessig 2004). An
owner may allow others to build upon a protected work provided that
the "new" work is similarly accessible or usable. Note
that the moral bindingness of these contracts/agreements presuppose
prior entitlements (hinting at the moral justifications offered
below). For example, if neither party to a Copyleft license owns or
has legitimate title to the intellectual work in question, then the
resulting agreement/license will not be binding. *Thus, Creative
Commons and Copyleft models are actually built upon ownership or
entitlement claims to intellectual works.*


### 2.3 Patents



The domain or subject matter of patent law is the invention and
discovery of new and useful processes, machines, articles of
manufacture, or compositions of matter. There are three types of
patents recognized by US patent law: utility patents, design patents,
and plant patents. Utility patents protect any new, useful, and
nonobvious process, machine, article of manufacture, or composition of
matter, as well as any new and useful improvement thereof. Design
patents protect any new, original, and ornamental design for an
article of manufacture. Finally, the subject matter of a plant patent
is any new variety of plant that is asexually propagated (e.g. rose
bushes grown by cutting pieces of the stem). Patent protection is the
strongest form of intellectual property protection, in that a
twenty-year exclusive monopoly is granted to the owner over any
expression or implementation of the protected work (35 U.S.C.
SS101 (1988) and 35 U.S.C. SS154(a)(2)).



As with copyright, there are restrictions on the domain of patent
protection. The U.S. Patent Act requires usefulness, novelty, and
non-obviousness of the subject matter. The usefulness requirement is
typically deemed satisfied if the invention can accomplish at least
one of its intended purposes. Needless to say, given the expense of
obtaining a patent, most machines, articles of manufacture, and
processes are useful in this minimal sense.



A more robust requirement on the subject matter of a patent is that
the invention defined in the claim for patent protection must be new
or novel. There are several categories or events, all defined by
statute, that can anticipate and invalidate a claim of a patent (35
U.S.C. SS101 (1988)). In general, the novelty requirement
invalidates patent claims if the invention was publicly known before
the patent applicant invented it. For example, someone could not
obtain a patent on the production of stained glass by mixing potash
and sand, heating the mixture to 3000 Fahrenheit, and then adding
different metallic oxide powders to produce different colors, even if
the inventor in this case independently came up with this process.
 



In addition to utility and novelty, the third restriction on
patentability is non-obviousness. United States patent law requires
that the invention not be obvious to one ordinarily skilled in the
relevant art at the time the invention was made. A hypothetical
individual is constructed and the question is asked, "Would this
invention be obvious to an expert in the relevant field?" If it
would be obvious to this imaginary individual then the patent claim
fails the test (35 U.S.C. SS103).



In return for public disclosure and the ensuing dissemination of
information, the patent holder is granted the right to make, use,
sell, and authorize others to sell the patented item (35 U.S.C.
SS154 (1984 and Supp. 1989)). The bundle of rights conferred by a
patent excludes others from making, using, or selling the invention
regardless of independent creation. Like copyright, patent rights
lapse after a given period of time--20 years for utility and
plant patents, 14 for design patents. But unlike copyright protection,
during their period of applicability these rights preclude others who
independently invent the same process or machine from being able to
patent or market their invention. 


### 2.4 Trade Secret



The subject matter of trade secret law is almost unlimited in terms of
the content or subject matter that may be protected and typically
relies on private measures, rather than state action, to preserve
exclusivity. "A trade secret is any information that can be used
in the operation of a business or other enterprise and that is
sufficiently valuable and secret to afford an actual or potential
economic advantage over others" (U.S. Legal Code, The
Restatement (Third) of Unfair Competition, 1995, SS39). The secret
may be a formula for a chemical compound; a process of manufacturing,
treating, or preserving materials; a pattern for a machine or other
device; or a list of customers. Trade secrets are not registered
with a government agency.



The two major restrictions on the domain of trade secrets are the
requirements of secrecy and competitive advantage. An intellectual
work is not a secret if it is generally known within the industry,
published in trade journals, reference books, etc., or readily
copyable from products on the market.



Although trade secret rights have no built-in expiration, they are
extremely limited in one important respect. Owners of trade secrets
have exclusive rights to make use of the secret only as long as the
secret is maintained. If the secret is made public by the owner, then
trade secret protection lapses and anyone can make use of it.
Moreover, owners' rights do not exclude independent invention or
discovery. Within the secrecy requirement, owners of trade secrets
enjoy management rights and are protected from misappropriation. This
latter protection is probably the most important right granted, given
the proliferation of industrial espionage and employee theft of
intellectual works. If a trade secret is misappropriated and made
public, courts may impose injunctive relief and damages. For example,
if someone misappropriates a trade secret and publishes it on a
website, courts may require deletion and payment of fines.


### 2.5 Trademark



The domain or subject matter of trademark is, generally speaking, the
good will or good name of a company. A trademark is any word, name,
symbol, or device, or any combination thereof, adopted by a
manufacturer or merchant to identify her goods and distinguish them
from goods produced by others (15 U.S.C. SS1127 (1988)).
 Some marks identify services rather than products.



A major restriction on what can count as a trademark is whether or not
the symbol is used in everyday language. In this respect, owners of
trademarks do not want their symbols to become too widely used because
once this occurs, the trademark lapses. An example of this restriction
eliminating a word from trademark protection is
"aspirin"--as the word became a part of the common
culture, rights to exclusively use the trademark lapsed.



Ownership of a trademark confers upon the property holder the right to
use a particular mark or symbol and the right to exclude others from
using the same (or similar) mark or symbol. The duration of these
rights is limited only in cases where the mark or symbol ceases to
represent a company or interest, or becomes entrenched as part of the
common language or culture.


### 2.6 Protecting Mere Ideas



Outside of the regimes of copyright, patent, trade secret, and
trademark, there is a substantial set of case law that allows
individuals to protect mere ideas as personal property. This system of
property is typically called the "law of ideas" (Nimmer
1954, Epstein 1992). A highly publicized case in this area is
*Buchwald v. Paramount Pictures* (13 U.S.P.Q. 2d 1497 (Cal.
Super. Ct. 1990)), concerning the Eddie Murphy movie *Coming to
America*. Buchwald approached Paramount Pictures with a movie idea
and it was agreed that if a movie was made following Buchwald's
premise he would receive compensation. Buchwald did not fix his idea,
for example by writing it down, and thus copyright infringement did
not apply. After several years of false starts and negotiations
Paramount notified Buchwald that the movie based on his idea was not
going to be produced. Shortly after this notification, *Coming to
America* was released and credit was given to Eddie Murphy. Even
though the movie supposedly lost money, Buchwald sued and received
compensation.



The law of ideas is typically applied in cases where individuals
produce ideas and submit them to corporations expecting to be
compensated. In certain cases, when these ideas are used by the
corporation (or anyone) without authorization, compensation may be
required. Before concluding that an author has property rights to her
idea(s), courts require the idea(s) to be novel or original
(*Murray v. National Broadcasting,* 844 U.S. F2d 988 (Second
Cir. 1988)) and concrete (*Hamilton Nat'l Bank v. Belt*
(D.C. Cir. 1953)). Compensation is offered only in cases of
misappropriation (*Sellers v. American Broadcasting Co*. (11th
Cir. 1982)).


### 2.7 Droits Morals: Continental Systems of Intellectual Property



Article 6*bis* of the Berne Convention articulates the notion
of "moral rights" that are included in continental
European intellectual property law. The doctrine protects the personal
rights of creators, as distinguished from their economic rights, and
is generally known in France as "droits morals" or
"moral rights." These moral rights consist of the right to
create and to publish a work in any form desired, the creator's
right to claim the authorship of his work, the right to prevent any
deformation, mutilation or other modification thereof, the right to
withdraw and destroy the work, the prohibition against excessive
criticism, and the prohibition against all other injuries to the
creator's personality (Roeder 1940).


## 3. Justifications and Critiques



Arguments for intellectual property rights have generally taken one of
three forms (Hughes 1988; Moore 2008). Personality theorists maintain
that intellectual property is an extension of individual personality.
Utilitarians ground intellectual property rights in social progress
and incentives to innovate. Lockeans argue that rights are justified
in relation to labor and merit. To this we add a recent fourth strand
of justification (Moore 2018). This more recent justification analyzes
content creation and access as a form of the prisoner's dilemma.
On grounds of prudence and self-interest, we each have reason to adopt
and promote institutions that protect intellectual works. While each
of these strands of justification has its weaknesses, there are also
strengths unique to each.


### 3.1 Personality-Based Justifications of Intellectual Property



Rather than focusing on incentives and consequences or labor and merit
(see utilitarian and Lockean arguments below), the personality
theorist argues that intellectual property is an extension of
individual personality. Personality theorists such as Hegel maintain
that individuals have moral claims to their own talents, feelings,
character traits, and experiences. We are self-owners in this sense.
Control over physical and intellectual objects is essential for
self-actualization--by expanding our selves outward beyond our
own minds and mixing these selves with tangible and intangible items,
we both define ourselves and obtain control over our goals and
projects. For Hegel, the external actualization of the human will
requires property (Hegel 1821). Property rights are important in two
ways according to this view. First, by controlling and manipulating
objects, both tangible and intangible, our will takes form in the
world and we obtain a measure of freedom. Individuals may use their
physical and intellectual property rights, for example, to shield
their private lives from public scrutiny and to facilitate life-long
project pursuit. Second, in some cases our personality becomes fused
with an object--thus moral claims to control feelings, character
traits, and experiences may be expanded to intangible works (Humboldt
1792; Kohler 1969).



The right of divulgation, when and if an intellectual work is placed
before the public, is grounded in justified possession or prior
entitlements over the work in question and the wrongness of compelling
speech. A central wrong-making feature of violating the
rights of attribution and integrity is that, in the typical case, a
kind of misrepresentation or fraud occurs. For example, when
Smith changes a painting by Jones without notice, there is a
misrepresentation being offered. As with attribution and
integrity, the right of withdraw could be protected by contracts
that determine the downstream uses of intellectual works.


#### 3.1.1 Problems for Personality-Based Justifications of Intellectual Property



There are at least four problems with this view (Hughes 1988; Palmer
2005; Schroeder 2006). First, it is not clear that we own our
feelings, character traits, and experiences. While it is true that we
have possession of these things or that they are a part of each of us,
an argument is needed to establish the relevant moral claims.



Second, even if it could be established that individuals own or have
moral claims to their personality, it does not automatically follow
that such claims are expanded when personalities become infused in
tangible or intangible works. Rather than establishing property claims
to such works, perhaps we should view this as an abandonment of
personality--similar to the sloughing off of hair and skin cells.
Moreover, misrepresenting an intellectual work (assuming there are no
moral rights to these expressions) might change the perception of an
author's personality, but it would not in fact change their
personality.



Third, assuming that moral claims to personality could be expanded to
tangible or intangible items, we would still need an argument
justifying property rights. Personality-based moral claims may warrant
nothing more than use rights or prohibitions against alteration.
Finally, there are many intellectual innovations in which there is no
evidence of a creator's personality--a list of customers or
a new safety-pin design, for instance (Hughes 1988). Given these
challenges, personality-based theories may not provide a strong moral
foundation for legal systems of intellectual property.


#### 3.1.2 The Personality Theorist's Rejoinder



Even if we acknowledge the force of these objections, there does seem
to be something intuitively appealing about personality-based theories
of intellectual property rights. Suppose, for example, that Mr. Friday
buys a painting at a garage sale--a long-lost Crusoe original.
Friday takes the painting home and alters the painting with a marker,
drawing horns and mustaches on the figures in the painting. The
additions are so clever and fit so nicely into the painting that
Friday hangs it in a window on a busy street. There are at least two
ethical worries to consider in this case. First, the alterations by
Friday may cause unjustified economic damage to Crusoe. Second, and
independent of the economic considerations, Friday's actions may
damage Crusoe's reputation. The integrity of the painting has
been violated without the consent of the author, perhaps causing
long-term damage to his reputation and community standing. If these
claims are sensible, then it appears that we are acknowledging
personality-based moral "strings" attaching to certain
intellectual works. By producing intellectual works, authors and
inventors put themselves on display, so-to-speak, and incur certain
risks. Intellectual property rights afford authors and inventors a
measure of control over this risk. To put the point a different way,
it is the moral claims that attach to personality, reputation, and the
physical embodiments of these individual goods that justify legal
rules covering damage to reputation and certain sorts of economic
losses.



There is also the issue of compelled speech. Friday, in this
example, is misrepresenting Crusoe and compelling him to discuss
the changes, integrity, and original intent of the intellectual
work. Instances of plagiarism and forgery are also example of
misrepresentation and fraud.



Moreover, personality-based theories of intellectual property often
appeal to other moral considerations. Hegel's personality-based
justification of intellectual property rights included an
incentive-based component as well--he asserts that protecting the
sciences promotes them, benefiting society (Hegel 1821). Perhaps the
best way to protect these intuitively attractive personality-based
claims to intangible works is to adopt a more comprehensive system
designed to promote progress and social utility.


### 3.2 The Utilitarian Incentives-Based Argument for Intellectual Property



In terms of "justification," modern Anglo-American systems
of intellectual property are typically modeled as incentive-based and
utilitarian (Oppenheim 1951; Machlup 1962; Boonin 1989; Hettinger
1989; Mackaay 1990; Coskery 1993; Palmer 1997; Moore 2001, Lemley
2015). On this view, a necessary condition for promoting the creation
of valuable intellectual works is granting limited rights of ownership
to authors and inventors. Absent certain guarantees, authors and
inventors might not engage in producing intellectual property.
Although success is not ensured by granting these rights, failure is
inevitable if those who incur no investment costs can seize and
reproduce the intellectual effort of others. Adopting systems of
protection like copyright, patent, and trade secret yields an optimal
amount of intellectual works being produced, and a corresponding
optimal amount of social utility. Coupled with the theoretical claim
that society ought to maximize social utility, we arrive at a simple
yet powerful argument for the protection of intellectual property
rights.



It is crucial to note that the issue of whether intellectual property
protection does, or does not, sufficiently promote human happiness or
well-being is an empirical question. Whether or not, for example,
intellectual property protection provides an incentive that elicits
some optimal output of content creation can be settled only by looking
to the empirical evidence. Likewise, whether or not intellectual
property protection has the effect of hindering innovation and
inhibiting the production of novel valuable content can be settled
only by empirical analysis. The difficulties involved in obtaining
such evidence suggest that the empirical question will remain debated
for some time. Complicating the task is the fact that the efficacy or
lack thereof of intellectual protection in promoting well-being seems
to vary from one industry to the next (Lemley 2015).



On the positive side there are numerous authors who claim that the
empirical evidence is now squarely in favor of intellectual property
protection. The tragedy of a 'no-protection rule' is
secrecy, restricted markets, and lost opportunities (Miners &
Staff 1990; Mossoff 2015; O'Connor 2016). William Fisher
notes:



> 
> Potential innovators will know that, once they reveal their
> breakthroughs to the world, other people will be able to take
> advantage of them for free. Consequently, the innovators will be
> unable to recoup the costs of their innovations (the costs of the
> education they underwent to prepare them to make the innovations, the
> outlay for research and development, their opportunity costs, etc.).
> Aware of this risk, potential innovators will devote their energies to
> other, more lucrative activities, and society at large will suffer.
> (Fisher 2001)
> 



Robert J. Barro and Xavier Sala-I-Martin note that over the long run
the world's growth rate is largely:



> 
> driven by discoveries in the technologically leading economies.
> Followers converge at least part way toward the leaders because
> copying is cheaper than innovation over some range. As the pool of
> uncopied ideas diminishes, the cost of imitation tends to
> increase...the consequence from the absence of intellectual
> property rights across economies...[is] the leading places tend
> to have insufficient incentive to invent, and the follower places tend
> to have excessive incentive to copy. (Barro & Sala-I-Martin 1997)
> 



Professor Petra Moser makes the following observation:



> 
> In countries without patent laws, inventors depend entirely on
> secrecy, lead-time, and other alternatives to patents in protecting
> their intellectual property. As a result, investments in research and
> development may be most attractive in industries in which secrecy can
> effectively guarantee exclusive rights long enough to allow inventors
> to recoup their investments. (Moser 2013)
> 



While much of the economic literature in this area focuses on patents,
similar points can be made with respect to copyright. With the ease of
copying and distribution afforded by modern digital networks, content
creators would seem to be at a serious disadvantage compared to
copiers. Without copyright there would be nothing to stop copiers
from simply copying movies, books, articles, and music and selling,
trading, or allowing others to make free copies. Michael Smith
and Rahul Telang, argue that piracy harms both producers and consumers
by undermining the income streams of producers, resulting in less
content being created (Smith & Telang 2016). Sean
O'Connor notes, "it should be clear that no one would
invest without some appropriation mechanism that would provide them
with a favorable return on their investment through the monetization
of the commercialized goods or services. If they cannot see a way to
get such a return, they will not make the
investment" (O'Connor 2015).


#### 3.2.2 Problems for the Utilitarian Incentives-Based Argument



On the negative side there are many who argue that "the jury is
out" or that systems of IP protection actually hinder innovative
activity (Machlup 1958; Schiff 1971; Palmer 1990; Boldrin & Levine
2007). On patent protection, Fritz Machlup (1958) wrote "No
economist, on the basis of present knowledge, could possibly state
with certainty that the patent system, as it now operates, confers a
net benefit or a net loss upon society" (Machlup 1958).
Nevertheless, Machlup went on to argue that such considerations do not
yield the conclusion that we should abolish patent protection.
Professors Michele Boldrin and David Levine argue that a 'first
mover advantage,' coupled with secrecy and add-on services, is
sufficient as an incentive for creation and discovery (Boldrin &
Levine 2007). Tom Palmer made a similar point seventeen years earlier,
arguing that intellectual works should be protected via technological
fences and contracts, along with bundling in other products and
services (Palmer 1990).



Given that the utilitarian argument rests on providing incentives,
what is needed to critique it are cases that illustrate better ways,
or equally good ways, of stimulating production without granting
private property rights to authors and inventors. It would be better
to establish equally powerful incentives for the production of
intellectual property that did not also require initial restricted use
guaranteed by rights (Polanyi 1943; Machlup 1962; Hettinger 1989;
Waldron 1993; Moore 2003; Wright 1998).



One alternative to granting intellectual property rights to inventors
as incentive is government support of intellectual labor (Hettinger
1989; Calandrillo 1998). This could take the form of government-funded
research projects, with the results immediately becoming public
property. The question becomes: can government support of intellectual
labor provide enough incentive to authors and inventors so that an
equal or greater amount of intellectual products are created compared
to what is produced by conferring limited property rights? Better
results may also be had if fewer intellectual works of higher quality
were distributed to more people.



Unlike a government-supported system of intellectual property rights,
reward models may be able to avoid the problems of allowing monopoly
control and restricting access, and at the same time provide
incentives to innovate (Shavell and Van Ypersele 2001). In this model,
innovators would still burn the midnight oil chasing that pot of gold,
and governments would not have to decide which projects to fund or
determine the amount of the rewards before the works'
"social value" was known. Funds necessary to pay the
rewards could be drawn from taxes or collecting percentages of the
profits of these innovations. Reward models may also avoid the
disadvantages of monopoly pricing, and obstructions to further
adaptation and innovation.



Trade secret protection appears to be the most troubling from a
utilitarian incentives-based perspective (Hettinger 1989). Given that
no disclosure is necessary for trade secret protection, promoting
trade secrets through incentives yields no reciprocal long-term social
benefit. Trade secret protection allows authors and inventors the
right to slow the dissemination of protected information
indefinitely--a trade secret necessarily requires secrecy.


#### 3.2.3 The Utilitarian Rejoinder



The utilitarian who defends the incentives argument may well agree
with many of these criticisms and still maintain that intellectual
property rights, in some form, are justified--the current system
of protection is better than government support of intellectual
property creation, reward models, or nothing at all. Additionally,
most of the worries surrounding the incentive-based approach appear to
focus on problems of implementation. We could tinker with our system
of intellectual property, cutting back on some legal protections and
strengthening others (Coskery 1993; Moore 2008). Perhaps we could
include more personality-based restrictions on what can be done with
an intangible work after the first sale, limit the term of copyrights,
patents, and trade secrets to something more reasonable, and find ways
to embrace technologies that promote access while protecting
incentives to innovate. The utilitarian might also remind us of the
costs of changing our system of intellectual property. The 'jury
may be out' so-to-speak regarding the economic advantages of legal
protections for intellectual works, but the social and economic costs
of radically changing these institutions at this point would be overly
burdensome.


### 3.3 Lockean Justifications of Intellectual Property



A different strategy for justifying intellectual property rights
begins with the claim that individuals are entitled to control the
fruits of their labor (Locke 1690; Hettinger 1989; Becker 1993; Gordon
1993; Moore 1998b; Hughes 1988; Palmer 2005; Himma 2005a, 2006, 2008,
2013; Merges 2011). In general, the intuition is that the person who
clears unowned land, cultivates crops, builds a house, or creates a
new invention obtains property rights by engaging in these activities.
Laboring, producing, thinking, and persevering are voluntary, and
individuals who engage in these activities are entitled to what they
produce. Subject to certain restrictions, rights are generated when
individuals mix their labor with an unowned object. Restrictions or
limits on acquisition include a labor requirement, a non-waste
requirement, and the "enough and as good" proviso (Locke
1690). Labor, for Locke, is best understood as metaphor for productive
activities needed to sustain and promote human flourishing (Mossoff
2012). The non-waste requirement invalidates a property claim if the
appropriator takes more than she can consume or use without spoilage.
Unlike the labor metaphor, spoilage for Locke means rotting or the
destruction of an existing good useful for sustaining human life.
Finally, the "enough and as good" proviso is best
illustrated by an example Locke gives. When someone takes a drink of
water from a river it is as if he takes nothing at all. His fellows
are, all things considered, unaffected by this acquisition.



Consider a more formal version of Locke's famous argument.
Individuals own their own bodies and labor--i.e., they are
self-owners. When an individual labors on an unowned object, her labor
becomes infused in the object and for the most part, the labor and the
object cannot be separated. It follows that once a person's
labor is joined with an unowned object, assuming that individuals
exclusively own their body and labor, rights to control are generated.
The idea is that there is an expansion of rights: we each own our
labor and when that labor is mixed with objects in the commons, our
rights are expanded to include these goods.



In terms of intellectual property, the act of creation or discovery
typically takes time, effort, and skill. Intellectual works
don't spoil like apples, so there are no
"non-waste" concerns. Moreover, the creation or discovery
seemingly leaves "enough and as good." Creating a poem,
for example, and holding it as a secret does not preclude others from
creating their own poems.


#### 3.3.1 Objections to Locke



Locke's argument is not without difficulties. Jeremy Waldron
(1983) argued that the idea of mixing one's labor is
incoherent--actions cannot be mixed with objects. P. J. Proudhon
(1840) argued that if labor was important, the second labor on an
object should ground a property right in an object as reliably as the
first labor. Nozick (1974) asked why labor mixing generated property
rights rather than a loss of labor. Waldron (1983) and Perry (1978)
have argued that mixing one's labor with an unowned object
should yield more limited rights than rights of full ownership.
Finally, if the skills, tools, and inventions used in laboring are
social products, then perhaps individual claims to title have been
undermined (Grant 1987; Hettinger 1989).


#### 3.3.2 The Lockean Rejoinder



Among defenders of Lockean-based arguments for private property, these
challenges have not gone unnoticed (Spooner 1855; Schmidtz 1990; Mack
1990; Simmons 1992; Child 1990; Moore 2001; Mossoff 2012; Claeys
2017). Rather than rehearsing the points and counterpoints, consider a
modified version of the Lockean argument--one that does not so
easily fall prey to the objections mentioned above.



After weeks of effort and numerous failures, suppose Ginger comes up
with an excellent new recipe for spicy noodles--a recipe that she
keeps in her mind and does not write down. Would anyone argue that
Ginger does not have at least some minimal moral claim to control the
recipe? Suppose that Fred samples some of Ginger's noodles and
desires to purchase the recipe. Is there anything morally suspicious
with an agreement between them that grants Fred a limited right to use
Ginger's recipe provided that Fred does not disclose the
process? Alas, Fred didn't have to agree to the terms and, no
matter how tasty the noodles, he could eat something else or create
his own recipe. Arguably, part of the moral weightiness of the
agreement between Ginger and Fred relies on the fact that Ginger holds
legitimate title to the recipe. A slightly different way to put
this Lockean argument for intellectual property rights is:



> 
> 
> *Step One*: The Generation of Prima Facie Claims to Control
> - Suppose Ginger creates a new intellectual work -
> creation, effort, etc., yield her prima facie claims to control
> (similar to student desert for a grade).
> 
> 
> 
> *Step Two*: Locke's Proviso - If the acquisition of
> an intellectual object makes no one (else) worse off in terms of their
> level of well-being compared to how they were immediately before the
> acquisition, then the taking is permitted.
> 
> 
> 
> *Step Three*: From Prima Facie Claims to Property Rights
> - When are prima facie claims to control an intellectual work
> undefeated? Answer: when the proviso is satisfied. Alas, no one
> else has been worsened - who could complain?
> 
> 
> 
> *Conclusion*: So long as no harm is done - the proviso is
> satisfied - the prima facie claims that labor and effort may
> generate turn into property claims (Moore 2012).
> 
> 
> 



In small communities it may even be possible to contract with all of
one's fellows securing all or some of the bundle of full
ownership. In this sort of example, every single member of the
community would be directly part of the agreement. Ginger says to her
peers, "if you want access to my recipe, then you will have to
agree to my right to enjoy income" and they reply "but
such rights can't be indefinite ... we as a community
won't be on the hook for defending this agreement
indefinitely." In the ensuing give-and-take an agreement is
hammered out. It is important to note that the moral bindingness of
such an agreement is crucially dependent on the initial set of
entitlement claims generated by labor, desert, and non-worsening. If
Ginger, in this case, was not the author of the recipe -- suppose
she took it from someone else -- it is not at all clear that the
resulting contract would be morally or legally binding.



Moving from small communities to larger ones a more general form of
agreement between authors, inventors, and society can be considered.
If intellectual works are to be held as anything other than trade
secrets, walled off with narrow contracts like non-disclosure
agreements or non-competition arrangements, there must be a way of
securing access. Society may purchase access by offering limited
rights to authors and inventors. Moreover, if some society does not
offer this sort of protection, then innovators would likely employ
their talents in other areas or simply move to a society where such
agreements are recognized.


### 3.4 Intellectual Property and the Prisoner's Dilemma



A major concern and limitation on the traditional justifications for
intellectual property already discussed is that many scholars reject
the starting assumptions needed to generate the desired moral claims.
For example, non-utilitarians will dismiss the theoretical foundations
of utilitarianism. Non-Lockeans will reject Locke's commitment
to self-ownership, natural rights, and individual flourishing.
Building off of the positive economic analysis mentioned in the
utilitarian justification for IP discussed above, Moore (2018) offers
a different sort of argument based on individual prudence and self
interest. Note that this argument, while concerned with consequences,
is not focused on maximizing human well-being or flourishing.



Consider the following case. Imagine that we have two intellectual
property creators, Beren and Luthien, and two possible outcomes
for each. In a single-play prisoner's dilemma game, each player
can copy an intellectual creation of the other, or not. Assume as well
that the intellectual works created by Beren and Luthien are
valuable, interesting, or desired. The best case for either player is
one where their own intellectual creation is not copied and yet they
get to copy the work of the other player. This is 'best'
for the player who copies and 'worst' for the player who
doesn't because, (1) the player who copies gets to enjoy or
consume more content compared to the other player, (2) the player who
copies still has the option or possibility of obtaining benefit by
selling, trading, or bartering with the other player, while the
non-copier does not enjoy these possibilities -- this provides a
way to recoup research and development costs, and (3) via selling,
trading, or bartering the copier may obtain a positional advantage and
more capital for future exchanges compared to the non-copier. Simply
put, the copier obtains more content and retains more opportunities to
sell, barter, or exchange compared to the non-copier. If Beren and
Luthien both refrain from copying each other, then each will
avoid the worst outcome in terms of recouping investment costs and
being at a positional disadvantage. Both will also retain the option
of buying or bartering for the non-copied content the other enjoys.
This payoff is 'okay,' better than 'worst' but
not as good as 'best.' If both Beren and Luthien
copy each other, then both will get extra content to enjoy and will
not be put at a positional disadvantage, but each will be denied the
possibility of recouping research and development costs. The other
player will not buy or barter for content he already possesses. These
payoffs mirror a prisoner's dilemma game (Axelrod 198,
1984, Skyrms 1990, Binmore 2015, Holt, Johnson
and Schmidtz 2015).



In modeling content creation, access, and copying as an iterated
prisoner's dilemma between numerous individuals, the problem
becomes even more salient. It will be individually rational to copy
the intellectual efforts and creations of others. This will suppress
innovation and lead to a sub-optimal result. Based solely on rational
self-interest and prudence, Moore argues we should adopt institutions
that promote innovation and allow inventors the capacity to recoup
research and development costs. If copying becomes too widespread or
if enforcement mechanisms fail, then we will likely spiral toward the
collectively sub-optimal result of suppressing innovation. We see
similar results of an intellectual property prisoner's dilemma
played out between nations. Through the use of sanctions against
copying the intellectual efforts of others, we give ourselves
compelling reasons to pursue a collectively superior outcome.


## 4. General Critiques of Intellectual Property



Putting aside the strands of argument that seek to justify moral
claims to intangible works and the rather focused problems with these
views, there are several general critiques of the rights to control
intellectual property to consider.


### 4.1 Information is Not Property



Critics argue that information is not the kind of thing that can be
owned or possessed and is not something that can be property, as that
notion is typically defined. Information objects, such as numbers and
propositions are abstract objects, which cannot causally interact with
material objects, and hence cannot be owned or possessed. The idea,
for example, that one could, in the relevant sense, possess and hence
own the novel expressed by the book *A Tale of Two Cities*
makes as little sense as the idea that one could possess and hence own
the entity denoted by the symbol "2." Whatever concepts
might properly be applied to abstract objects, on this view, the
concept of property, according to these theorists, does not. As a
conceptual matter, the term "intellectual property," at
best, applies to nothing and, at worst, is incoherent.



This analysis is vulnerable to at least two objections. First, it is
not clear that ownership, as a conceptual matter, requires physical
possession. One can argue that the essence of ownership consists in a
power -- the power to exclude others from certain behaviors
involving the relevant entity -- and not in physical control or
possession of the entity. Second, the claim that information objects
cannot be property does not imply that it is illegitimate to grant to
authors or content-creators a legal right to exclude others from
appropriating those objects without their consent. That some entity E
is not "property" implies only that it should not be
legally protected qua property; it does not imply that E should not be
protected in very similar ways. It might be that such legal rights
should be called something other than "intellectual property
rights," but these rights could be called something else, such
as, for example, "intellectual content rights."


### 4.2 Information is Non-Rivalrous



Many have argued that the non-rivalrous nature of intellectual works
grounds a prima facie case against rights to restrict access. Since
intellectual works are not typically consumed by their use and can be
used by many individuals concurrently (making a copy does not deprive
anyone of their possessions), we have a strong case against moral and
legal intellectual property rights (Kuflik 1989; Hettinger 1989;
Barlow 1997). One reason for the widespread pirating of intellectual
works is that many people think restricting access to these works is
unjustified. Consider a more formal version of this argument:



P1.
If a tangible or intangible work can be used and consumed by many
individuals concurrently (is non-rivalrous), then maximal access and
use should be permitted.
P2.
Intellectual works falling under the domains of copyright, patent,
and trade secret protection are non-rivalrous.
C3.
It follows that there is an immediate prima facie case
*against* intellectual property rights, or *for*
allowing maximal access to intellectual works.


The weak point in this argument is the first premise (Moore 2012;
Himma, 2005b). Consider sensitive personal information. Moore argues
that it false to claim that just because this information can be used
and consumed by many individuals concurrently, a prima facie moral
claim to maximal access is established. This argument applies as well
to snuff films, obscene pornography, information related to national
security, personal financial information, and private thoughts; each
are non-rivalrous, but this fact does not by itself generate prima
facie moral claims for maximal access and use. Moreover, it is not
clear that unauthorized copying does no harm to the owner even in
cases where the copier would not have purchased a copy legitimately
(and thus is not denying the owner economic compensation they would
otherwise receive). Unauthorized copying creates un-consented to risks
that owners must shoulder.



Himma points out that, by itself, the claim that consumption of
information is non-rivalrous does not imply that we have a right of
any kind to those objects. While this certainly provides a reason
against thinking protection of intellectual property is morally
justified, it does not tell us anything about whether we have a right
of some sort because it does not contain any information about morally
relevant properties of human beings--and the justification of
general rights-claims necessarily rests on attributions of value that
implicitly respond to interests of beings with the appropriate level
of moral standing--in our case, our status as persons (Himma
2005b).


### 4.3 Information Wants to be Free



Barlow (1997) argues that information is entitled to moral
consideration in virtue of being alive. On his view, information is a
form of life with a claim to be free that is grounded in interests and
"wants" of its own. As he puts the point, information
objects "are life forms in every respect but a basis in the
carbon atom. They self-reproduce, they interact with their
surroundings and adapt to them, they mutate, they persist."
Further, these living information objects have some sort of interest
in being made available to everyone free of charge.



Barlow's argument can be challenged on a couple of grounds.
First, Himma (2005b) argues that it is simply implausible to think of
abstract objects as having wants -- or even interests. The
concept of desire is such that only conscious beings are capable of
having desires; although a conscious being can have subconscious
desires, non-sentient entitles are no more accurately characterized as
having desires than as having hopes. Second, even if information
objects had wants or interests, Barlow gives no reason for thinking
that they have a desire to, or interest in being made freely available
to all. Certainly, the claim that being made freely available to all
somehow benefits information objects needs an argument if for no other
reason than that it is counterintuitive.


### 4.4 The Free Speech Argument against Intellectual Property



According to some, promoting intellectual property rights is
inconsistent with our commitment to freedom of thought and speech
(Nimmer 1970; Hettinger 1989; Waldron 1993). Closely associated with
this argument is the position that individuals have a right to
knowledge and intellectual property institutions interfere with this
basic right. Hettinger argues that intellectual property
"restricts methods of acquiring ideas (as do trade secrets), it
restricts the use of ideas (as do patents), and it restricts the
expression of ideas (as do copyrights)--restrictions undesirable
for a number of reasons" (Hettinger 1989). Hettinger singles out
trade secrets as the most troublesome because, unlike patents and
copyrights, they do not require disclosure.



Three sorts of replies have been offered to this kind of worry (Himma
2006; Moore 2012). While we focus on the free speech argument against
intellectual property, right to know arguments fall prey to similar
objections. The first objection notes that it is the incentives found
in providing limited protection that fosters the creation and
dissemination of information--a system of intellectual property
protection may cause restricted access in the short run, but overall,
the commons of thought and expression is enhanced. Simply put,
in the long run we get more to talk about, consume, and
enjoy because of the incentives afforded by copyrights and
patents.



Second, it is not at all clear that free speech is so presumptively
weighty that it nearly always trumps other values. Shouting at someone
over a bullhorn all day is not something we would countenance as
protected free speech. Hate speech, obscene expressions, sexual
harassment, and broadcasting private medical information about others
are each examples of speech that we are willing to limit for various
reasons--perhaps intellectual property rights can be viewed in
this light.



Finally, consider the contentious, yet established, idea/expression
rule of copyright. Copyright only applies to fixed expressions, not to
the ideas that may make up a fixed expression. For example, someone
may read Darwin's original writings on evolution, express these
ideas in her own words, and obtain a copyright in the new expression.
This individual may be guilty of plagiarism, but so long as her
expressions are not copied from Darwin's original or
substantially similar to the original, she can obtain a copyright.
Copyrights and patents require disclosure and thus the ideas that make
up these intellectual works may be discussed and analyzed.


### 4.4 The Social Nature of Information Argument



According to this view, information is a social product and enforcing
access restrictions unduly benefits authors and inventors. Individuals
are raised in societies that endow them with knowledge which these
individuals then use to create intellectual works of all kinds. On
this view the building blocks of intellectual
works--knowledge--is a social product. Individuals should
not have exclusive and perpetual ownership of the works that they
create because these works are built upon the shared knowledge of
society. Allowing rights to intellectual works would be similar to
granting ownership to the individual who placed the last brick in a
public works dam. The dam is a social product, built up by the efforts
of hundreds, and knowledge, upon which all intellectual works are
built, is built up in a similar fashion (Proudhon 1840; Grant 1987;
Shapiro 1991; Simmons 1992, Boyle 1997).



Beyond challenging whether the notion of "society"
employed in this view is clear enough to carry the weight that the
argument demands, critics have questioned the view that societies can
be *owed* something or that they can *own* or
*deserve* something (Spooner 1855; Nozick 1974; Moore
2012). Lysander Spooner writes:



> 
> "*What* rights society has, in ideas, which they did not
> produce, and have never purchased, it would probably be very difficult
> to define; and equally difficult to explain *how* society
> became possessed of those rights. It certainly requires something more
> than assertion, to prove that by simply coming to a knowledge of
> certain ideas--the products of individual labor--society
> acquires any valid title to them, or, consequently, any
> *rights* in them" (Spooner 1855).
> 



The problem of how individuals acquire property rights (personality,
utilitarian, Lockean, etc.) now applies to how societies obtain these
rights. 



Moore charges that defenders of the social nature argument against
intellectual property fail to see that it may prove too much.



> 
> But like the defender of the first cause argument for the existence of
> God who rides the principle of sufficient causation to a certain point
> and then conveniently abandons it (every event or object needs a
> sufficient cause and nothing is self-caused *except* God) the
> proponent of the "shared culture" view is guilty of a
> similar trick. "Shared culture" or the social nature of
> intellectual property view is sufficient for undermining intellectual
> property rights or robust control of intellectual works, but
> conveniently not strong enough to undermine student desert for a
> grade, criminal punishment, or other sorts of moral evaluation (Moore
> 2012).
> 



Finally, even if a defender of this view can justify societal
ownership of general pools of knowledge and information, it could be
argued that we have already paid for the use of this collective wisdom
when we pay for education and the like.


### 4.6 The Cost of Publishing Digital Information



Coy (2007) argues is that, in a competitive market, the cost of
information should properly reflect the cost of making it available to
users. On this line of analysis, while the cost of making publishing
information in traditional material media like books might be
sufficiently high to justify charging users a price for it, the cost
(per user) of making information available on digital media approaches
zero as the number of users grow larger. For example, there might be
some fixed cost involved in making information available on a website,
but no additional cost is required beyond that to make that content
available to any number of users; the more users appropriating the
information, the lower the cost of making it available to any
particular user. Thus, the argument concludes, it would be unfair to
charge users a fee for appropriating any piece of (digital)
information; information should be free (or nearly free) so as to
reflect its dissemination costs.



There are two problems with this argument. First, if one accepts the
legitimacy of free enterprise, as appears to be presupposed by the
above argument, then what is a fair price will be determined by the
voluntary interactions of buyers and sellers in a competitive market:
the fair price is that which is set by the contractual transactions of
free, prudentially-rational buyers and sellers. If buyers in a
competitive market are willing to pay a price for digital information
that is significantly higher than the seller's marginal cost,
then that price can be presumed fair. Second, the argument overlooks
the fact that the fixed costs associated with producing and
distributing intellectual content can be quite high. For example, the
Disney Company spent more than $100 million in making the film
*West Side Story* in 2021. If one assumes that a fair price is
such as to allow the producer to recover the fixed development costs
associated with producing and distributing intellectual content, this
would entail that it is fair for content producers to charge a price
that is sufficiently above the marginal costs to allow them to recover
these fixed costs.


### 4.7 The Liberty Objection to Intellectual Property



When an individual owns a physical item her rights exclude others from
interfering with her control of it. But intellectual
property rights sweep across the entire domain of human
action, restricting individual liberty even in the privacy of
one's own home. "How can the artist, copyright or
patent holder determine what I can do with my stuff?" Many
have attacked the notion of intellectual property on the grounds that
it violates individual liberty rights (Palmer 1990). Tom Palmer
argues,



> 
> 
> Liberty and intellectual property seem to be at odds, for while
> property in tangible objects limits actions only with respect to
> particular goods, property in ideal objects restricts an entire range
> of actions unlimited by place or time, involving legitimately owned
> property (VCRs, tape recorders, typewriters, the human voice, and
> more) by all but those privileged to receive monopoly grants from the
> state (Palmer 1990).
> 
> 
> 



There are at least two replies to this sort of worry. First, the
problem may be addressed by adopting specific legal rules. For
example, current Anglo-American institutions of intellectual property
have built in provisions that limit the rights of authors and
inventors. These limitations, for example "fair use"
(17 U.S.C. SS107) and "first sale" (17 U.S.C.
SS109(a)) allow individuals to use a patented or copyrighted
work for personal use, non-profit, or educational purposes. Under
current law it is permissible to make back-up copies of computer
games or to copy a chapter of a book from the library. Perhaps
these kinds of limitations could be built into the bargain between
society and those who create intellectual works.



A second reply is that rights of all sorts restrict what
individuals can do with their bodies and property. Restricting
individual liberty is no more a feature of intellectual
property than of other sorts of rights. Physical property
rights to a car, for example, prohibit all of humanity from
swinging a bat and damaging the car in question. Even in the
privacy of your own home it is not legally permissible to punch
someone in the face, destroy a
visitor's personal property, or engage in risky activities
that threaten one's neighbors.