Intellectual Property as Real Property

There are many ways to defend intellectual property, and critics of intellectual ownership may attack this concept from many different perspectives. Conceptually, intellectual property is a form of ownership rights to one's own creations, and if we are advocates of creative ownership, then we must also be advocates of intellectual property. It has been my experience that critics of intellectual property use questionable applications of intellectual property law to argue against creative ownership in general. For example, by pointing to Amazon.com's attempt to capture exclusive patent rights to a simple script that enable users to purchase items using the 1-click option. The application of some 26 patents that refer to the 1-click method is a contestable case even among intellectual property lawyers. So pointing to this as a reason to oppose intellectual property is not convincing.

If it is possible that there is one very real and defensible forms of intellectual property, then the critic of intellectual property must say that there is legitimate basis for intellectual property. Consider the following examples. A poem, a book, a play, and a musical expression, which are all forms of intellectual property.

The utilitarian economic defense of intellectual property says that the creator of the property would not be allowed to recover the costs that it took to invent the product, or be rewarded in any sense, if that creation is not protected from unfair uses like commercial redistribution. If anyone can copy a piece of literature that I spent years writing and perfecting, there is no monetary reward for me. There may also be no personal reward if I am not even credited for the creation. Or, if I am a starving artist and I create a masterpiece, yet anyone with a business degree is able to reproduce my work and sell it, that does not allow me the opportunity to cover the opportunity costs of creating that masterpiece. In general I do not accept utilitarian arguments, yet I find that most critics of intellectual property do and base their opposition to intellectual property on some form of utilitarianism, so it is worth pointing out that there are utilitarian grounds for advocating intellectual property.

A better defense of intellectual property is, I think, on the basis of one's rightful ownership over creations that have significant labor-value crystallized within them. Utilitarian arguments will focus on productive incentives that are created by establishing property laws, and while I think those are important, a more basic defense of intellectual property would argue that acquiring rights to one's own productive activity affords the artisan the respect deserved to have their work credited to themselves. For example, musical notation is not itself copyrighted, yet the specific ordering and written accumulations of notation forms an expression that is. An expression is an extension of one's creativity, one's laborious efforts that went into creating that expression, and ultimately this transforms the expression into something that one can say is a unique signature.

Expressions are even more directly an extension of one's own creativity and labor than are other forms of property, such as real estate. Of course, there are transfer rights involved in property ownership, allowing someone to transfer ownership of property to someone else. Thus I can sell copies of my own poems and art to interested buyers. I can sell the effort it took to build a house to someone else. Or I can sell the right to reproduce my play to a theatrical organization who would like to use it in a performance. Intellectual property also originates with no inherent loss to scarce resources. I can write thousands of plays that had never existed before, and I am not buying up say, land or real estate, that might be put to better uses elsewhere. We cannot talk about allocative inefficiencies with intellectual property: if I had not written any plays, there would be no plays to allocate in the first place. Now, perhaps it would be more efficient for society if I were selling apricots. But we cannot make such a paternalistic judgment objectively since all paternalism falsely objectifies subjective realities.