Intellectual Property Isn’t Property

This post is inspired from a conversation I had with a colleague of mine and his brother.  The conversation was largely about intellectual property rights and whether they were a benefit or hindrance to market innovation. The principled issue is that intellectual property rights are neither property nor a right.

Sounds insane at first, doesn’t it?  So let’s start with the term property.  What defines what is or isn’t property?  Lockean philosophy—from which our modern understanding of both property and natural rights stem from—defines two key characteristics that a thing must possess to be property: effort and scarcity.  Scarcity, in economics, refers to a quality that a resource is limited in comparison to unlimited human want.  Many things in this world contain only one of those two qualities and are thusly not considered property.  No individual owns the ocean for example because while it may be scarce (there is not enough of it for every individual to own the whole of it exclusively) it requires no human effort, it simply exists.  Your house, by contrast, is both scarce and required effort in terms of your time or money to build or buy.  Logically then, you can own your home, but you cannot own the Pacific Ocean.

So are ideas capable of being property?  While the may require effort, they are not scarce.  Every one of us can possess the whole of a singular idea simultaneously without inherent conflict.  No less a man than Thomas Jefferson wrote:

“It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it.”

Since ideas are not capable of being scarce, we cannot claim that they are property in which I and I alone have an exclusive right to.

What Is A Right?

This brings us to the second question—what is a right?  Locke can help us out a great deal here yet again.  In the Second Treatise Concerning Civil Government Locke defined natural rights as life, liberty, and property.  Clearly, an idea is not life or liberty, and it fails to meet the basic criteria for property.  Going a step farther, Locke’s philosophy was expanded to define natural rights (sometimes called negative rights) as rights that are not subjected to an action of another person or group.  Positive rights (also sometimes called legal rights) by contrast are subject to another person.  Your natural right to liberty, for instance, requires merely that you be left alone whereas a legal right to healthcare requires another individual to perform a service for you.  So where do ideas fit it?

You certainly have a right to your own ideas, but strange as it may sound, you even have a right to the ideas that others have shared because simply thinking about them yourself does not require you to interact with or interfere with the original proponent of the idea in any way.  We all can think of the words “All men are created equal” that Jefferson wrote down without harming Jefferson in person or property.  Exclusive ownership of ideas cannot then be considered a natural right.  Intellectual property laws do grant protections to individual ideas however and are thus a legal, or positive, right.  The enforcement of such a “right” is possible only through State-sponsored threats of force against other individuals merely for seeking to employ those ideas on their own.  In effect, intellectual property rights should be called intellectual monopoly licenses.

This is not to say that there may or may not be some more general value to the concept of such protections for inventors, engineers, or other thinkers in a general sense, and it is easy to demonstrate how such protections benefit the individual protected by them.  The harm this causes at large to other individuals due to the market distortions it creates is best left for another discussion in the future but intellectual property isn’t property, and exclusive ownership of ideas isn’t a right.

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