Intellectual Property: A First Principles Debate [POLICYbrief]
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Intellectual Property: A First Principles Debate [POLICYbrief]


Intellectual property, or IP, are rights that
are granted by the government to encourage innovation and creativity. The term was originated to come up with a
defense of certain types of monopoly privileges, primarily patent and copyright law, which
had existed for a few centuries in the West. Intellectual property is not property in the
same sense as normal property rights because normal property rights are designed to protect
scarce resources, things in the world that we can have a conflict over. This includes our bodies and other resources
in the world, tangible material objects. Property rights arise as a social mechanism
to allow us to use these resources cooperatively, and peacefully, and productively with each
other, but intellectual property covers ideas and non-scarce resources, patterns which
can be infinitely copied and multiplied. One of the benefits of- of having property
is the ability to keep other people out. I can let people that I don’t want to come
to my house know that they can’t be there. And patents and copyright provide the same
sort of, uh, what’s known as exclusive rights that private property does that- that you
can say, “You can’t trespass on my invention and you can’t copy my- my new creative work.” So, the difficulty when we look at intellectual
property as property is: how do we know where the boundaries are? But as far as what are our rights, the idea
that we can keep people out, that’s exactly like physical property. Legally, the proper way to understand intellectual
property rights is a- a negative servitude or a negative easement. And if you understand what a negative easement
is, it gives the holder of the easement a right to prevent the owner of the existing
property to use it the way he sees fit. And these are perfectly legitimate if they’re
granted voluntarily like in a restrictive covenant in our neighborhood. But in patent and copyright, the government
grants these monopoly privileges to holders of- of these ideal rights and it allows them
to stop other people from using their bodies or their other property as they see fit. There’s a number of philosophical justifications
for intellectual property, but one of the clear ones is- is John Locke’s principle. The idea that if you put your effort and mix
it with, uh, nature, you should get property rights in the resulting object. Uh, if- if you take a tree and turn it into
a barrel, the barrel should be yours. And that’s the same idea with intellectual property. One of the things intellectual property does
is it allows you to get exclusive rights on what you invent. And with those exclusive rights, you can either
keep other people from doing it and manufacture the- the invention yourself or you can license
it to a patent licensing firm. The inventor, who has spent a lot of time
and money in the uncertain activity of inventing, can recoup some of those costs and some of
those expenses. So, the question is not whether a given policy
or law incentivizes innovation. The purpose of law is to protect property
rights. Like, we have to recognize that in today’s
world, even though we have copyright law, piracy is rampant. In today’s 2017, artists have to deal with
the fact of copyright and piracy. And, uh, they have to come up with business
models to work around that. So, but then the question is: the absent patent
and copyright law, what protections, uh, would they have? Well, first of all, they have property rights,
like we all do; they have the right to own their own studio, or their own printing press,
or their own machine shop and make inventions; they have the right to engage in commerce
and sell their goods. You can sell tickets at a concert, you can
sell a CD if you want to. There’s nothing prohibiting you from selling
a CD just because you don’t have a copyright. It’s just that other people could sell a copy
of it, too. So, you have competition. There are a number of things that are happening
right now that are causing uncertainty in the patent system, devaluing patents, and
decreasing the public’s confidence in the patent system as a whole. The Patent Trial and Appeal Board is getting
rid of lots of patents, invalidating lots of patents, and a number of these patents
are on really great, innovative technology. So, what I would do to reinvigorate the patent
system is change the way that bad patents can be invalidated by making it more certain
and less harassing for innovators and patent owners. So, the primary reforms I would make would
be to patent and copyright and the primary reform would be to immediately and, uh, completely
abolish both patent and copyright law. I think we would instantly be way better off
in terms of innovation and freedom. Just because something’s been in place for
200 years or so doesn’t mean it’s just. When people copy, they’re learning, and they’re
emulating what people do. We have to not be afraid of competition. We have to embrace private property rights
and- and we have to understand that state-granted rights to protect you from a competitor are
the opposite of a free market, and they undercut private property rights. With patent rights, what we’ve gotten is a
ton of innovation over the last number of centuries, great inventions, fantastic inventors
that are worthy of being protected and we’re all enjoying the results of this activity. If we don’t have this strong patent system
that has allowed for this level of innovation going forward, we might get less innovation
and a lot less cool toys to play with.

11 thoughts on “Intellectual Property: A First Principles Debate [POLICYbrief]

  1. Companies don't make a choice to innovate , they have to innovate in order to stay competitive. People used to and still do criticise China for not respecting IP, instead of seeing a diminishment of innovation, we're seeing a boom. The idea of the monopoly is as anti-capitalistic as it gets, there needs to be an open fair market for everyone to compete.

  2. Law evolved as a strategy to REDUCE conflict and when necessary peaceably resolve it. Property law works to
    reduce conflict over scarce and rivalrous property like cars and houses. By contrast, intellectual
    property law works to INCITE conflict. It requires a massive police and surveillance state paid for
    not voluntarily by intellectual property owners but cooercively by consumers through forced taxation.
    As well the force of intellectual property rights is typically brought
    to bear in the interests of the wealthy few and against the interests of the much poorer many.

  3. Who in their right mind would want to abolish copy right law – that's like saying goodbye to movies, books and music.

  4. Stephan kinsella has already addressed all of her arguments and more in other speeches that he's given. Patent and copyright are harmful and should be abolished.

  5. You don't actually have to create a working design to claim IP on an idea. You just have to draft it and say it works. Then from there you can use threats of violence and coercion to others based on them acting in a non violent way.

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