Intellectual property Anyone?
Tibor R. Machan
There is a debate afoot now about whether one ever owns the likes of a novel, poem, computer game, song, arrangement or similar “intellectual” items. Some argue, to quote the skeptic, Professor Tom Bell of Chapman University’s School of Law, “Copyrights and patents function as a federal welfare program of sorts of creators,” while others, such as James V. DeLong of the Competitive Enterprise Institute, hold that “It is difficult to see why intellectual property should be regarded as fundamentally different from physical property.” I want to suggest a way to come to terms with this dispute in this brief essay and offer a possible resolution.
A major issue that faces one who wishes to reach a sensible understanding of intellectual property is just what “intellectual” serves to distinguish among what surrounds us in the world and how that contrasts with other kinds and types of possible property. What quality does “intellectual” point to about something? In my list, above, I am assuming that whatever is an invention or creation of the human mind amounts to potential IP, while others would argue that nothing intellectual in fact can constitute property, let alone private property. But this is merely to start things off, in need of clarification and analysis.
Some have proposed that the major element distinguishing intellectual from other property is that it is supposed to be intangible. So, for example, home or car or land parcels are tangible, capable of being brought into contact with our senses. However, a musical score or arrangement or a romance novel is supposed to be intangible – such a thing cannot be touched, felt or otherwise brought into contact with our sensory organs. Yet an immediate problem this attempt to distinguish intellectual property is that there are tangible aspects to inventions, and there are intangible aspects to these other items that are supposedly all tangible. A home is not just some raw stuff but a building that is the result of a combination of ideas, some of them inventions. Even land isn’t own exactly as it occurs in the wild but is configured by the more or less elaborate design work of landscapers. The same with whatever so called tangible items that function is property. A watch is not just some metal, mineral, glass and such assembled randomly but some assembly of such materials designed to show time and otherwise be appealing as well. In turn, a novel, song or computer game is also a combination of tangible and intangible stuff – the paper, typewriter or pen and the lead or ink with which the novel is written – only the author, and only for a little while, encounters the novel in intangible form after which the novel becomes an often very tangible manuscript.
The tangible/intangible distinction is not a good one for what can and cannot be owned and, thus, treated as distinctive enough to be related to owners. Indeed, the distinction seems to derive from a more fundamental one, in the realm of philosophy and its basic branch, metaphysics. In a dualist world reality would come in either a material or a spiritual rendition. Our bodies, for example, are material objects, whereas our minds or souls are spiritual or at least immaterial ones.
This goes back to Plato’s division of reality into the two realms, actual and ideal, although in Plato particular instances of poems or novels belong to the actual realm. A less sophisticated version of dualism, however, suggests the kind of division that’s hinted at through the tangible-intangible distinction. In nature we may have physical things as well as stuff that lacks any physical component, say our minds or ideas. Yet much that isn’t strictly and simply physical is intimately connected with what is, such as our minds (to our brains) and ideas (to the medium in which they are expressed).
So, the tangible versus intangible distinction does not seem to enable us to capture the distinguishing aspect of intellectual property. What other candidates might there be?
One candidate is that unless government or some other force bearing agency bans the supply of some item of intellectual property, there is never any scarcity in that supply.
There is certainly something at least initially plausible about this view. What is tangible is more subject to delimitation and capable of being controlled by an owner than something that is intangible. A car or dresser is such a tangible item of property, whereas a novel or musical composition tends to be fuzzy or less than distinct. One cannot grab a hold of a portion of a novel, such as one of its characters, as one can of a portion of a house, say a dresser.
Yet intellectual property isn’t entirely intangible, either. Consider that a musical composition, on its face, fits the bill of being intangible, yet as it appears, mainly in a performance or on a recording, it takes on tangible form. Consider, also, a design, say of a Fossil watch. It is manifest as the watch’s shape, color, and so on. Or, again, how about a poem or musical arrangement? Both usually make their appearance in tangible form, such as the marks in a book or the distinctive style of the sounds made by a band. These may be different from a rock, dresser, top soil or building but they aren’t exactly ghosts or spirits, either.
It might also appear that the theological division between the natural and supernatural mirrors the tangible-intangible division but that, too, is misleading since no one who embraces that division would classify a poem or novel as supernatural. Thus it seems that there isn’t much hope in the distinction some critics of intellectual property invoke. The tangible-intangible distinction seems to be independent of the usual types of ontological dualism and so the case against intellectual property, then, seems unfounded. If there is such a distinction, between ordinary and intellectual property, it would need to be made in terms of distinctions that occur in nature, without recourse to anything like the supernatural realm. Supposedly, then, in nature itself there are two fundamentally different types of beings, tangible and intangible ones. Is this right?
Again, it may seem at first inspection that it is. We have, say, a brick, on the one hand, and a poem, on the other. But we also have something very unlike a brick, for example, smoke or vapor or clouds. In either case it’s not a problem to identify and control the former, while the latter tend to be diffused and allusive. We also have liquids, which are not so easy to identify and control as bricks but more so than gases. Indeed, it seems that there is a continuum of kinds of beings, from the very dense ones to the more and more diffused ones, leading all the way to what appear to be pure ideas, such as poems or theater set designs.
So, when we consider the matter apart from some alleged basic distinction between tangible and intangible stuff, one that seems to rest on certain problematic philosophical theories, there does not appear to be any good reason to divide the world into tangible versus intangible things. Differentiation seems to be possible in numerous ways, on a continuum, not into two exclusive categories. Nor, again, does it seem to be the case that there is anything particularly intellectual about, say, cigarette smoke or pollutants, albeit they are very difficult to identify and control. They are, in other words, not intellectual beings, whatever those may be, yet neither are they straightforwardly tangible.
I would like to explore the possibility of a very different distinction, namely, one between what is untouched by human meaning and whatever is subject to it. For example, there would be no poems without intentions, decisions, deliberations and so forth. There would, however, be trees, rocks, fish or lakes. Is it the point of those who deny that intellectual property is possible that when people produce their intentional or deliberate objects, such as poems, novels, names, screenplays, designs, compositions, or arrangements, these things cannot be owned? But this is quite paradoxical.
The very idea of the right to private property is tied, in at least the classical liberal tradition – starting with William of Ockham, to John Locke and Ayn Rand – to human intention. It is the decision to mix one’s labor with nature that serves for Locke as the basis for just acquisition. In the case of such current champions of this basic individual right, such as James Sadowsky and Israel Kirzner, it is the first judgment made by someone to invest something with value that serves to make something an item of private property.
However all of this comes out in the end, one thing is certain: the status of something as property appears to hinge on it’s being in significant measure an intentional object. But then it would seem that so called intellectual stuff is a far better candidate for qualifying as private property than is, say, a tree or mountain. Both of the latter are only remotely related to human intentions, whereas a poem or novel cannot have their essential identity without having been intended (mentally created) by human beings.
Of course, in becoming owned, a tree and mountain does become subject to intentionality, as when someone decides to make use of such a thing for his or her purposes. And, conversely, even in the case of a poem, there are words that are as it were pre-existing and only their particular concatenation is a matter of intention.
I am not certain what the outcome should be from these and related reflections. They do suggest something that is part of both the ordinary and the so called “intellectual” property traditions, namely, that when human beings are agents of creation, when they make something on their own initiative – when they invest the world with their distinctive effort, they gain just possession of what they have produced. And if there is anything that they produce more completely than such items as poems or computer games, I do not know what it might be.
For me, then, the issue is this: When one designs and produces something novel that one has thought up, some gadget or machine or such, does one then own this design/product? And if someone else copies it, did they take something from the former against his or her will? If the answer is yes to the former, then I think the answer must be yes to the latter.
Whether the protection of one’s property occurs via this or that legal device — patent, contract, trademark, what have you — seems a secondary issue and detail. The first is ownership. Also, what one’s owning something one conceives and makes may mean for others who may be thinking up the same thing later is irrelevant, no less so than if one finds a piece of land and appropriates it and then later others, too, find it and would like to appropriate it but now may not.
Those, by the way, who complain that governments enforce patents and copyright laws, should realize that governments also enforce property rights in societies with governments. Governments in such societies are akin to body or security guards. Certainly, taxing others for this enforcement is unjust but that isn’t the essential idea behind the enforcement, not if one understands that copyright and patents could be protected without government, as well, just as other private property can be protected without government. But until it is government that protects — not establishes but protects — rights, it will also protect the right to intellectual property, if there be such a distinct thing in the first place. Taxation for such protection is irrelevant since taxation for the protection of other types of property is also beside the point.
Finally, that patents run out may be compared to the fact that ownership can cease with death, too. Of course, patents or trademarks or copyrights could all be reassigned from one to another owner, just as property in anything can be reassigned upon voluntary exchange or transfer. There is nothing necessarily odd about this, simply because the matter hasn’t developed very smoothly and consistently.
Obama’s Utilitarian Foibles
November 20, 2013
Editorial By Tibor Machan
The utilitarian insists that the morally right way to act is to promote the greatest good for the greatest number (of people but perhaps of all sentient beings). This goes for public policy as well! The goal overrides any individual rights, so if to secure it some people’s rights to life, liberty and/or property need to be violated, so be it!
For example, if to provide health insurance for elderly folks it is necessary to coerce young people to purchase health insurance, then coerce them! Never mind their right to liberty and property. Those are irrelevant, even though they are supposed to be unalienable rights no one may violate, not in the American political tradition.
Here, then, is a clear example of how the Obama regime departs significantly, in its political philosophy and program, from the uniquely American framework. This framework supports securing the protection of individual rights as the primary job of government. Read the Declaration of Independence and see for yourself. That is indeed the central feature of the American Revolution, with its Bill of Rights and its Constitution.
Not only does that render the country one that’s free – under which all citizens may live as they choose provided they do not violate anyone’s rights – but is responsible for the great prosperity of the country, its freedom from arbitrary government intervention in people’s lives. Even the public good or interest does not permit it. While this may appear to be a restriction that stops the country from achieving utilitarian objectives, the very opposite is the result! That’s because free men and women make the most productive use of their liberty.
The idea is that human beings are by their very nature proactive. They think of ideas that they will implement and these are usually good ideas, ideas their fellows can make good use of. This is the essence of entrepreneurship. They don’t just daydream but think purposefully, which is to say their ideas can be marketed to others. Out of this process arises the bustling economy of a country and, indeed, of the world.
So long as men and women are free to think creatively and productively, they will make sure their work will have payoffs, either economic or personal or even charitable. This is how a free society works, creates products and services, and leads to high employment to boot.
But the likes of Obama & Co. want to step in and regiment how free men and women act and they believe or pretend to know what others should do to be productive. And that means, usually, that they misguide the economy. (The most notorious recent example of this was all those five-year plans Stalin and his gang unleashed upon Russia and its satellite states, which brought the Soviet Socialist system to its knees!)
But Mr. Obama & Co. fail or refuse to grasp any of this. Shame on them!
- See more at: http://www.thedailybell.com/editorials/34657/Tibor-Machan-Obamas-Utilitarian-Foibles/#sthash.ZaOVPmpD.dpuf
Liberty and Productivity
November 13, 2013
Editorial By Tibor Machan
Statists routinely suggest their distrust of human initiative. This is why they keep advocating government stimuli instead of free markets.
In a free market, one which prohibits government intrusions, regulations and regimentation, it is understood that when men and women are free of such intrusions, they will most likely – though never certainly – engage in entrepreneurial initiative, the main result of which is productivity. No guarantee exists that free men and women will innovate and produce but that is most likely. Indeed, while slaves can be scared into work, free men and women will usually see the point of work and engage in it with gusto.
Statists, of course, deny this and claim that only if government creates artificial incentives or issues threats will citizens become productive. That is the basic theory behind stimulus packages, tax breaks, subsidies and so on.
But notice that all this omits the issue of why bureaucrats and politicians would be motivated to work. Why are they exceptions to the rule that statists assume, namely, a lethargic citizenry? How can we trust government agents to go to work, to produce, to innovate, etc., but not free men and women? Statists never address this as they advocate pushing citizens around, nudging them, stimulating them, etc. Who will nudge the nudgers?
At the heart of this issue lies a basic philosophical dispute: Are free men and women capable of initiative, of getting to think and work on their own or must they be dealt with like barnyard beasts that need to be driven to work by masters? Statists see people as such animals, incapable of innovation, of initiative, of creativity, so they need to be pushed around by bureaucrats and politicians. Yet this is completely inconsistent with the powers they grant to themselves. Why would only those running government possess the power to undertake productive, creative projects while the citizenry is deemed too passive?
Actually, a better way of understanding this is to realize that statists want to reserve to themselves the prerogative of spending resources on various projects – public works, they like to call them – and rob the rest of the citizenry of their resources to do as they judge sensible, prudent and wise.
In short, the statist wants to be in charge of what projects get to be undertaken, use everyone’s labor or property for these and not permit the rest of us to allocate our resources, including our labor, to projects of our own.
- See more at: http://www.thedailybell.com/editorials/34699/Tibor-Machan-Liberty-and-Productivity/#sthash.RQQeMGrt.dpuf
Investment and Prudence
October 30, 2013
Editorial By Tibor Machan
To be prudent amounts to making sure that one takes good care of oneself in all important areas of one’s life. Health, wealth, family, friendship, understanding, etc. are all in need of good care so that one will achieve and sustain one’s development as a human individual. It all begins with following the edict: “Know thyself!”
All those folks who make an effort to keep fit and to eat properly are embarking on elements of a prudent life. Unfortunately, the virtue of prudence has been undermined by the idea that everyone automatically or instinctively pursues his or her self-interest.
We all know the rhetorical question, “Isn’t everyone selfish?” Because of certain philosophical and related doctrines, the answer has been mainly that everyone is. In the discipline of economics, especially, scholars nearly uniformly hold the view that we all do whatever we do so as to please ourselves, to feel good. No room exists there for pure generosity or charity, for altruism, because in the final analysis everyone is driven to act to further his or her own wellbeing, or for carelessness, recklessness. If people do not achieve the goal of self-enhancement, it is primarily out of ignorance – they just don’t know what is in their best interest but they all intend to achieve it and even when they appear to be acting generously, charitably, helpfully and so on, in the end they do so because it gives them satisfaction, fulfills their own desires and serves their idea of what is best for them.
This is not prudence but what some have dubbed animal spirit. People are simply driven or motivated to be this way, instinctively, if you will. The virtue of prudence would operate quite differently.
One who practices it would be expected to make a choice to pursue what is in one’s best interest and one could fail also to do so. Practicing prudence is optional, not innately produced. Like other moral virtues, prudence requires choice. It is not automatic by any means. The reason it is thought to be so, however, has to do with the intellectual-philosophical belief that human conduct is exactly like the behavior of non-human beings, driven by the laws of motion!
Once this idea assumes prominence, there is no concern about people having to be prudent. They will always be, as a matter of their innate nature. What may indeed be needed is the opposite, social and peer pressure to be benevolent or kind, to adhere to the dictates of altruism, something that requires discipline and education and does not come naturally to people.
It would seem, however, that this idea that we are automatically selfish or self-interested or prudent doesn’t square with experience. Consider just how much self-destructiveness there is in the human world, how many projects end up hurting the very people who embark upon them. Can all that be explained by ignorance and error?
Or could it be, rather, that many, many human beings do not set out to benefit themselves, to pursue their self-interest? Could it be that human beings need to learn that they ought to serve their own wellbeing and that their conduct is often haphazard, unfocused, even outright self-destructive (as, for example, in the case of hard drug consumers, gamblers, romantic dreamers, fantasizers and the lazy)?
It seems that this latter is a distinct possibility if not outright probability. It is a matter of choice whether one is or is not going to be prudent, in other words. And once again, ordinary observation confirms this.
One can witness numerous human beings across the ages and the globe choosing to work to benefit themselves, as when they watch their diets or work out or obtain an education, and many others who do not and, instead, neglect their own best interest. Or, alternatively, they often act mindlessly, thoughtlessly, recklessly, etc.
The contention that they are really trying to advance their self-interest, to benefit themselves, seems to be one that stems from generalizing a prior conviction that everything in nature moves so as to advance forward. This is the idea that came from the philosopher Thomas Hobbes, who learned it from Galileo who took it from classical physics.
Accordingly, acting prudently, in order to advance one’s wellbeing, could be a virtue just as the ancient philosopher Aristotle believed it to be. And when one deals with financial matters, careful investing would qualify as prudence, just as is working out at a gym, watching one’s diet, driving carefully, etc.
- See more at: http://www.thedailybell.com/editorials/34706/Tibor-Machan-Investment-and-Prudence/#sthash.7Qy0lldp.dpuf
Misunderstanding Freedom of the Press
October 10, 2013
Editorial By Tibor Machan
Katherine Rushton of The Daily Telegraph wrote a column trying to embarrass those in America, like Republican lawmaker Kieran Michael Lalor, who oppose bringing in Al Jazeera television on to the American television news market. Ms. Rushton feels such opposition is a kind of ethnic prejudice, not sound journalism. Dubbing Al Jazeera “Al Jihad,” such efforts may well be over the top but not necessarily.
Suppose Americans had opposed making room for Pravda and Izvestia in America or some Nazi or fascist broadcasters in the past. Would this prove them to be prejudiced, unfair, biased? I personally object to NPR (National Public Radio) and PBS (Public Broadcasting Service), not at all because I am prejudiced but precisely because I consider it dangerous to treat government funded and supported “journalism” and “entertainment” as if it were just like some private outfit such as HBO, The New York Times or Time magazine.
When governments fund news outfits, they go astray in several ways. They take money by force from citizens to support what those citizens may well not want supported! They enjoy a competitive advantage as against those who do not use taxpayers’ resources. And when it comes to Al Jazeera, there is no other government-owned – it is owned by the Qatari government(!) – service pretending to be journalists instead of propagandists. (Not everything on Al Jazeera has to be tainted by government bias for one to be justified in being suspicious of the content of its broadcasts.)
Frankly, even the venerable BBC is a misguided institution and its reputation rests mainly on its traditional commitment to straight newscasting, not on its official restraint. Ms. Rushton complained that “Meritocracy is all well and good for certain ethnic minorities.” But evidently not for those with Middle Eastern or Islamic ties.
Maybe not so. Maybe what bothered Kieran Michael Lalor has nothing to do with ethnic ties but with evident enough efforts by Al Jazeera to cast jihadists in a favorable light. I don’t know this for sure but if so, that would certainly justify skepticism about Al Jazeera’s credentials and a bona fide news-broadcasting organization. Whenever I check out Al Jazeera, I sense that jihad is treated with kid gloves.
Genuine freedom of the press has no government involvement of any kind. Competition among newspapers, broadcasters, magazines, etc. arises from the initiative of entrepreneurs! Otherwise we are back to Pravda and the like, which should not be treated as agents of a free market of newscasting.
- See more at: http://www.thedailybell.com/editorials/34658/Tibor-Machan-Misunderstanding-Freedom-of-the-Press/#sthash.SNHPOsP6.dpuf