Intellectual Property Anyone?

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.





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4 Responses to “Intellectual Property Anyone?”

  • Mattthespaniard:

    It never ceases to amaze me how much confusion there is around this issue. I would have thought that smart people would always start their deliberations with the first scientific question… What is ? The author of this article is of a cult which prides itself in the use of flawless logic and pristine reasoning. We’ll see about that.

    What is property ? Can there be “something” such as “intellectual property” ? We should start there before entangling ourselves in all sorts of argumentative sophistry, just in case we might find ourselves arguing from a vacuum.

    Property is a relationship. One between a living organism ( normally but not exclusively a human ) and an EXISTING PHYSICAL OBJECT. This relationship has many folds: exclusive control, use, disposal, trade… And the way we have come to establish the relationship is crucial. Legitimate ( moral ) titles of property to be recognized and protected ( rights ) are those “acquired” through production, trade, gift and homestead ( in a word: peaceful ). Property established by theft or fraud is pretty much universally recognized as illegitimate, and for good reason, for it involves the initiation of the use of force against others.

    Can we then own an angel ? Unless you show me one, no we can’t. Can ideas be owned then ? Well, unless you show me one, no we can’t. To own necessitates the owned object to be, to exist in a TANGIBLE format so that we can establish a relationship of EXCLUSIVE CONTROL AND USE.

    It’s pretty funny how the same set of arguments that correctly allow Objectivists to do away with the fiction of self-ownership, is then proudly ignored with regards to the fiction of “intellectual property”. Your ideas, as cognitive processes of your OWN EXCLUSIVE making “inside” your head, ARE PART OF YOU, not something you can own. YOU ARE YOUR IDEAS, the same way you are your two hands and not “have” two hands. To have is definitely the WRONG VERB to be used.

    There is not a single idea in YOU that is not of your OWN making. Ideas you don’t have but you are, little padowans.

    The following quote summarizes the author position on this matter:

    “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.”

    Answer to the first question is NO YOU DON’T. You don’t OWN the design ( the idea ). It is part of WHO YOU ARE whilst in your head, not something you have. It doesn’t matter how long it took you or how much effort you put into it to come up with that idea ( to transform yourself from ignorant to cognizant). All cognitive processes that transformed you will remain part of your nature until you die ( or forget ) for these ideas are of the same nature as the rest of your intellectual production and will cease to exist if your biological systems malfunction, leaving no trace of what once was, unlike the case with tangible objects. If at some point you decide to COMMUNICATE this specific idea to ME using a code that we both understand, all mental processes that lead ME to produce it inside my head WILL BE OF MY OWN MAKING, and your original idea BECOMES MY IDEA ( part of me ), for it was me and my own means which I used to recreate it intellectually. Such is the amazing power of language ( another intellectual production ) that has allowed men to raise above all animals, because it transforms who we are so incredibly fast.

    So the answer to the second question must also be a resounding NO. When someone copies an idea, that someone is using their own means (themselves) to understand and reproduce it, and you have absolutely no right to claim a piece of that or for force to be used against that peaceful action. Of course you would like to benefit handsomely of what is inarguably your creation. Then make physical objects that solve your fellow man’s needs from the advantage that gives you to be the first to try, instead of immorally lobbying the mafia Estate to enforce a monopoly on what others make with means of their own.

    Your romance novel is of your authorship and you can publicize that fact. No one will ever be able to claim that they originated it and if they do they would be committing fraud. But the copy I make of the book is MINE. And the story in my head when I read it is ME, part of me. Your copyright is a very lame attempt to stop the world from spinning.

    We would always do well to understand the ontology of what we are dealing with, before we start using dialectical fireworks. It normally happens that once the matter’s true nature has been revealed, the remaining utilitarian arguments become unwarranted.

  • Jay:

    I started getting interested in this subject when one libertarian/anarchist website after another trotted Steven Kinsella out and promoted his ideas. I listened to their arguments against IP with increasing anger. They were so completely wrongheaded–so anti-libertarian, anti-social, anti-justice that it’s hard to know where to begin to respond. I ended up reading his book “Against Intellectual Property” and found it to be a collection of non-sequiters and other fallacious arguments. Kinsella rightly denounces ‘utilitarian’ arguments and in the same breath evokes ‘utilitarian’ arguments against IP rights saying that they are too costly and difficult to enforce. Central to his anti-IP thesis is that people do not have a right to their own labor. There. So why are so many libertarian think tanks promoting his ideas?

    I am firmly on the side of Murry Rothbard and Ayn Rand when it comes to property right theory. Property becomes property when value is added to it. Raw land becomes property when the fences (that make good neighbors) are added. That software that you want to pirate became property when someone put their time and effort into developing it. Yes, it would be silly and impossibly cumbersome to pay royalties to the decendents of the inventor of the wheel forever. So what? That’s why we put limits on the time that royalties must be paid. The time limits are arbitrary and may be unfair, but they’re designed to allow those who invested time, effort, and money in a value to get paid for their investment.

  • No6:

    To copy is a human right because survival is a human right.
    If you don’t want something copied, hide it. Don’t turn to thugs with guns.

  • I think the problem is not if something is physical or intelectual. Every ítem you said is able to be property. The problem comes from the media you use to send your intellectual property to your clients. If you are the only one with a printer in the world, then every novel you print is not easy to copy. Then the novel is itself property and there is no need to protect it with a copyright. Once there are many more printers the offer of novels would probably overwhelm demand and the price of every novel falls. Then authors and the first printers complain that that is unfair. And copyright laws ensue.

    So, the problem is not property itself, intellectual or not. The problem is that some that claim the need to preserve intellectual property just want to preserve the old media to sell that supposed property. They can change it. A writer can for example accept a lot less money for every book sold. Then the price of each book in the store should drop accordingly and probably people would prefer to buy it instead of copy it. Or may be he can read his books outloud in front of an audience for money instead of putting it in paper. The same can be said to music, chemical formula or whatever. But change usually is very difficult

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