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20060424

The Argument of Intangible Property Rights (A Lockean View)

Weak-Pareto Proviso

If the acquisition of an Intangible object makes no one else worse off in terms of their level of well-being (including opportunity costs) compared to how they were immediately before the acquisition, then the taking is permitted. Nobody else is harmed, therefore this step is OK.

  • Step One - The Generation of Prima Facie Claims to Contil
Suppose Ginger creates a new intangible work (a poem perjaps). Ceation, effort, etc. yield her prima facie claims to control.
  • Step Two - Locke’s Proviso
I interpret Lockes’ proviso as a non-worsening requirement; a cond of “no harm, no foul” rule. “Enough and as good” means thtat Ginger’s acquisition has left others, all things considered, unaffected.
  • Step Three - From Prima Facie Claims to Property Rights
When are prima facie claimss to control an intangible work undefeated? Answer: then 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.

We need to pick an appropriate baseline comparison in these comparisons, however. Picking an arbitrary baseline can result in unfair comparisons. We must choose an “immediately before” baseline.

Structure of overall argument

  1. If the acquisition of an intangible work stisfied a Pareto-based proviso, then the acquisition and exclusion are justified.
  2. Some acts if intangible property creation and posession satisfy a Pareto-based proviso.
  3. So, some intangibles property rights are justified.

Support for Premise 1

  1. Pareto Intuition
  2. A less-weak Pareto princple

Support for Premise 2

  1. Intellectual property is non-rivalrous. It is capable of being used and possessed by many individuals concurrently.
  2. the “same” intangible work may be cerated and owned by many different individuals concurrently (independent creation)
  3. The number of ideas, collections of ideas, or intangible works availab efor apporopriation is practically infininte (e.g. Locke’s water drinker)
  4. Institutions of systems of intangible property may provide compensation for apparents worsenings that occur at the level of acts.
  5. Many creations and inventions are strongly Pareto superior — meaning that everyone is bettered and no one is worsened.

Changes to IP Systems: Copyright and Patents

  1. No Exclusive patent monopolies.
Simply by excliming that you hgave created something, you may be co-opting someone’s right to independently invent something. Maybe this is a problem?
  1. Fair use and first sale??
Can’t put riders and contracts and such that prevent first sale. These rights go away under the rules that have been laid forth above. Perhaps there will be some manner of eminient domain rule in the ways of fair use, but first sale is no longer justified, due to the nature of intellectual works. Not doing a cross-benefit analysis of sharing of information.
  1. Term Limits on IP Rights??
This is a nasty one. In principle it is possible to do this stuff. However note that this never appears in terms of physical property rights.

Hence, a modified argument for intellectual property.

Other Arguments.

Prima Facie Case against Intellectual Property Rights

The non-exclusive nature of IP means that maximal access should be permitted. IP falling under copyright, patent and trade secret are non-rivalrous. Hence, there is an immediate prima facie case against intellectual property rights ofr fore allowing access to intellectual works.

Destroying the first premise.

What about pricvacy rights? All info about a person is non-rivalrously consumed. Does that mean that we should have mazimal access?

The Dr. Demento Case - a guy that slips you a mickey and you go to sleep. The pill is a rejuvenation pill. Rejuvenated your body as if you slept 8 hours. What really happened is that you became his zombie and he did all manner of nawsty thigns to you. This does not violate maximal access, but it’s probably not a desirable result.

Snuff films, obscene porn - should these be maximally available to everyone?

freedom of thought and Expression Argument

Permitting OP rights runs headling into our commitment to freedom of thought and speech. Private intellectal property restricts methings 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.

Trad Secrets are the worst - unlike copyrighrts and patents, tehy do not require disclosure (the ideas can be restricted indefinitely).

However, is freedom of speech absolute? No. Examples:

  • Hate speech
  • Obscene speech
  • Sexual Haeassment
  • Private Information

The Lockean “Labor Mixing” Argument

The root idea is that peopel are entitled to hod whatever they produce by their own initiative, intelligence, and industry. A person who clears 10 acres of land, builds a house and a barn, cultivates crops and urtures livestock, obtains full ownership rights by engaging in these activites. After years of such activity we would be outraged if tsomeone came aling and tossed the posessor out on her ear and claimed that her farm was now his. A labor argument represented by this example shows the force of the root idea.

Problems

Why should a person gain what whe mixes her laobir with instead of losing her labor - i.e. if i pour tomato juice into Lake washington, why should I get lake washington?

Sovereignty, security, and Privacy Arguments for Intellectial Property Rights (Hegel)

A good starting point for justifying rights to intellectial works and ideas comes fromt he plausibel intuition that we each have control over our own inds.

Problem is, none of our current rules are necessary for this kind of argument. Patents get weaker, copyrights get weaker, treade secrets go away. Rather undevelped area of IP thought. Look into this.

Utilitarian Justification of Intellectual Property.

This is in general the anglo-american system.

Thomas Jefferson- “The patent monopoly was not designed to secure the inventor his natural right in his discoveries. Rather it was a reward, and inducement, to bring forth new knowledge.

  1. Society ought to adopt a sustom ir institution iff it leads to or, given best estimates, is expected to lead to the maximization of overall social utility.
  2. A syste or institution that convers limited rights to authirs and invetors over what they produce is

Problems

What if we could get authors and inventors to produce wht same amount of works without granting property rights? The gov’t could support the work and results could maximize social utility. This woiuld be better.

Trade secrets are problematic because there is no trade-off between incentives and access. What social benefit does this have? (Can protect mom-and-pop against overly aggressive venture capitalists).

Alternitives

  • Reward model?
Rewards from the gov’t, maybe on basis of usage/sale, and work passes immediately into public domain. This gets rid of monopoly power and the ability to chill innovation.

Why an 20-year monopoly?

Fritz Machlup argues that pantet pretection is not neede as an incentive for corporations, in a competitive market, to invest in the development of new products and processes. The short-term advantage a company gets from developing a new product and being the first to put it on the market may be incentive enough.

Alternatives to Copyright

How do we know?

Economists who eather have considered the question indicate that either the jury is out, or that oter arrangements would be better. George priest claims that “The ratio of empirical demonstration to assumption in this literature must be very close to zero.. recently it has been nemonstrated wuite persuasively that in the current state of knowledge economistst know almost nothing about the effect on social welfare of the patent sustem or of other systems of intellectual property. If so, then…