Intellectual Property, Moral Rights, and Social Utility: A Classically Liberal Exploration of the Normative And Practical Implications of Intellectual Property Rights
Consider a world where ideas belong to no one, where patents and copyrights do not exist, and trademarks are only important for preventing consumer confusion, rather than preserving a company’s goodwill. When one examines current trends, it is difficult to envision an economy that does not hold intellectual property dear to its heart.1 And yet, the massive growth in the acquisition and exercise of intellectual property rights in many industries is a recent phenomenon.2 This is certainly true for patents, which, in combination with the growth of high-tech industries, have spurred a sort of “arms race,” where the winner is the group with the most patents to lord over the rest.3
The protection of intellectual property creates interesting problems for scholars and lawmakers who, despite their devotion to the preservation of physical property rights, nonetheless feel that intel-lectual property rights represent a set of concerns and principles that can be quite distinct from those evoked by ownership of a plot of land or a bag of gold.4 Scholars within the classical liberal tradition have made arguments for and against intellectual property rights from ideological and pragmatic perspectives. Whichever side of the argument one takes, the modern world presents a number of new issues. The products that people buy and sell today can best be described as copies—innumerable, identical, and easily reproduced manifestations of some original idea. Consumption, in the historical sense of taking control of and exhausting some physical resource— thereby making it unavailable for further or concurrent use— accounts for a diminishing portion of consumers’ purchases.
Some classical liberal arguments against intellectual property rights are founded upon a reasoned outrage against the association between the word “property” and the rights and monopolies given to creators of “ideal objects”—inventions, books, musical works, etc.5 Such arguments assert that the monopolies granted by intellectual property rights are anathema to a classical liberal tradition.6
I do not argue that intellectual property rights are a morally justified and benign legal phenomenon, nor do I argue that current intellectual protection regimes are tools of destructive governmental intervention. Rather, I hope to argue that, when tailored appropriately, intellectual property rights may offer a more effective means of protecting individual interests and promoting innovation than a voluntary contractual regime that provides no sui generis rights at all. Context is critical; intellectual property law has found its way into almost all modern economic activity, and in at least some cases, this may be an unwarranted and unjustifiable intrusion.
