Copyrights and Patents as Property?
Copyrights and patents of course share many features of property rights generally. . . . But for reasons I've detailed, and for other reasons I might add, copyrights and patents differ crucially from our natural rights to persons and property. Like a flat map of our spherical Earth, property theory illustrates some truths about copyrights and patents even as it imposes misleading distortions.
To better understand copyright and patent, we need other metaphors. I suggest, for instance, considering copyright and patent as akin to welfare programs. Like the welfare system, the copyright and patent system redistributes rights from members of the general public to particular beneficiaries: authors and inventors. And, like the welfare system, the copyright and patent system can lay fair claim to serving both equity and efficiency.
But, as with welfare, we should not forget that copyrights and patents represent, at best, necessary evils. We should always aim at a world where recipients of the public's largess learn to support themselves, relying not on special statutory protections but rather on the same general rights to persons, property, and promises that the rest of us rely on. We should, in other words, aim at ending copyrights and patents as we know them.
How Copyrights and Patents Violate Natural Rights
Copyrights and patents exist only at the expense of our natural rights to our persons and property. Copyrights limit your peaceable enjoyment of your printing press and throat, for instance, restraining you from publishing or singing in echo of another. Patents likewise constrain how you use your laboratory or machine shop. Copyright rights and patent rights thus do not come out of thin air. They exist only because the government has redistributed some of our natural rights to authors and inventors.
Such transgressions do not necessarily render copyrights and patents per se invalid. We routinely suffer violations of our natural rights in order to enjoy the fruits of government. Although it sometimes feels like simple theft, we forbear taxation because it serves such ends as national defense and public welfare.
Perhaps the rights redistributions effectuated by copyright and patent law prevent a looming market failure. We certainly enjoy a great abundance of expressions and inventions in the U.S., an effect to which copyright and patent law can plausibly lay claim. But let us not forget that we pay a price for such boons. And let us not forget that, once no longer necessary, a necessary evil becomes simply an evil.
I could—and in the Q&A part of my debate with Adam, did—say more about how copyrights and patents violate natural rights. We discussed several various accounts of natural rights—Lockean, Hayekian, Adam's, and mine—and I argued that none supports a natural right to copyrights and patents. We also discussed what the Founders seemed to have thought about the issue, and the legal import of that evidence. I don't know if I'll get around to recapping those points here. At any rate, though, the transcript published in the Journal of Technology Law and Policy ought to do the job.