Wednesday, September 25, 2019

Libertarian Principles of Intellectual Property


By Saira Banu, 

Image source: pmcorporatelaw.com

Libertarianism as a philosophy emerged in an attempt to cure the unfairness that plagues our world. This blog will attempt to question the basis for its very existence, along with assessing the effect of libertarian principles on intellectual property.

While it rose from a need to make living fairer, whether this principle is translated into the libertarian view of intellectual property (IP) is explored throughout this blog. Libertarianism assumes the existence of a natural harmony between productive people, and an analysis of how this harmonious existence seeks to protect or prevent intellectual property rights (IPRs) will be done. Essentially a political doctrine, human flourishing and human happiness are seen as the central takeaways of libertarian philosophy. Freedom of speech is celebrated in libertarianism, and the role and power of the government is optimally kept to a minimum to allow humans to exercise their own autonomy. While libertarians advocate “minimal government interference”, they do not prescribe to any sense of lawlessness as the government’s minimal responsibilities include protection against force, fraud and theft, as well as the enforcement of contracts. This is where we first see traces of libertarian principles in IPRs, which also emphasise the maximum freedom of the individual and minimum authority of the government.

A vital principle of libertarian philosophy is the “Non-aggression principle”. The non-aggression principle (NAP) holds that aggression against a person or property of others is always wrong, where aggression is defined narrowly in terms of the use or threat of physical violence. The NAP is considered the defining principle of the philosophy of Libertarianism and suggests that aggressive behaviour if initiated can be met with reciprocal aggression. The notion of liberty preached by libertarians requires a great sense of restraint, but the only restraint compatible with libertarianism is self-restraint.

Having established a basic premise of libertarianism and how its principles could or could not be compatible with IPRs, we will now elucidate what comprises IPRs and how it is impacted by the principles of libertarianism.

Very simply put, IP refers to creations of the mind. It is divided into two categories: (1) Industrial property that comprises inventions, trademarks, industrial designs and geographical indications, (2) Copyrights that comprise literary works, films, music, artistic works and architectural design. IPRs are treated like any other property right as they allow creators, or owners, of patents, trademarks or copyrighted works to benefit from their own work or investment in a creation. In this sense, IPRs embody the very essence of libertarianism as it restores individual agency to these “creations of the mind”, and allow these productive creators or owners to benefit from the fruit of their intellectual labour.

Several arguments exist supporting the establishment of the protection for IPRs. The WIPO argue that the progress and well-being of humanity rest on its capacity to create and invent new works in the areas of technology and culture. It further argues that the legal protection of new creations encourages the commitment of additional resources for further innovation, and that the protection and promotion of IPRs spurs economic growth, create new jobs and industries, and enhances the quality of life. Through the course of this blog, we will try to ascertain whether these are compatible with the principles of libertarianism.

Multiple scissions have erupted in the libertarian school of thought concerning the validity of IPRs in Libertarian philosophy. There is a stringent disagreement about the application of the fundamental principles of libertarianism. Two predominant schools of thought exist concerning this. The first school of thought postulates that patents and copyrights are a necessary component of a legal framework that protects open competition and individual rights, while the second school of thought is of the opinion that IP is a form of aggression or coercion, a violation of an individual’s legitimate prerogative.

IP has a central role in the global economy. Hence, the stakes are high and the public policy implications are far reaching. We will now look at libertarians who share a conflicting barrage of ideas ceding to IPRs. Murray Ruthbard defended a contract theory of copyright, provided that the work was properly contracted, as libertarians uphold the enforceability of legal contracts. He did however distinguish between patents and trademarks as the principle of attaining “copyrights by contract” does not extend to patents as the latter goes beyond the scope of the free market and the “original contract”. Benjamin Tucker, an individual anarchist was of the view that IP constituted protectionist economic privilege. During the course of his lifetime, he instituted a privatised mail delivery enterprise to challenge the US government’s monopoly over the postal system. He considered IPR as averse to individual rights and that it served no higher purpose than the insulation of the powerful against competition. He argued that copyrights and patents replaced the intrinsic worth of labour and provided a profit excess to the amount legitimately earned by them. Ayn Rand is another avid libertarian who vouches for IP, but does not reflect the same in her writings. Her values of libertarianism are enshrined in her acclaimed Atlas Shrugged, which also contributed to the popularisation of libertarianism. Rand argues that a man’s right to the product of his mind is unquestioned, while prescribing to a completely contradictory notion in her novel. What patent and copyright law acknowledges is the paramount role of mental effort in the production of material values. According to Rand, IP is validated by the protection it affords to creators in their fabrication of concrete things that did not previously exist in nature. Certain contemporary libertarian thinkers like Stephen Kinsella argue that IPRs are incompatible with libertarianism as it is nothing more than the redistribution of wealth and hence it becomes un-libertarian and unjustified.

Hence, there are varied instances to prove that libertarianism has influenced certain aspects of IPRs as illustrated above, but the fragmented ideological perspectives that accompany any school of philosophy exist in this scenario as well, preventing a reader from ascertaining a concrete understanding of the role of libertarianism in IPRs.

Saira Banu is a Research Intern at CPPR-Centre for Strategic Studies. Views expressed by the author are personal and need not reflect or represent the views of Centre for Public Policy Research.

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