Intellectual Property

First published Tue Mar 8, 2011; substantive revision Thu Aug 18, 2022

Intellectual property is generally characterized as non-physicalproperty that is the product of original thought. Typically, rights donot surround the abstract non-physical entity; rather, intellectualproperty rights surround the control of physical manifestations orexpressions of ideas. Intellectual property law protects acontent-creator’s interest in their ideas by assigning andenforcing legal rights to produce and control physical instantiationsof those ideas.

Legal protections for intellectual property have a rich history thatstretches back to ancient Greece and before. As different legalsystems matured in protecting intellectual works, there was arefinement of what was being protected within different areas. Overthe same period several strands of moral justification forintellectual property were offered: namely, personality-based,utilitarian, and Lockean. Finally, there have been numerous critics ofintellectual property and systems of intellectual property protection.This essay will discuss all of these topics, focusing onAnglo-American and European legal and moral conceptions ofintellectual property.

1. History of Intellectual Property

One of the first known references to intellectual property protectiondates from 500 B.C.E., when chefs in the Greek colony of Sybaris weregranted year-long monopolies for creating particular culinarydelights. There are at least three other notable references tointellectual property in ancient times—these cases are cited inBruce Bugbee’s formidable workThe Genesis of AmericanPatent and Copyright Law (Bugbee 1967). In the first case,Vitruvius (257–180 B.C.E.) is said to have revealed intellectualproperty theft during a literary contest in Alexandria. While servingas judge in the contest, Vitruvius exposed the false poets who werethen tried, convicted, and disgraced for stealing the words andphrases of others.

The second and third cases also come from Roman times (first centuryC.E.). Although there is no known Roman law protecting intellectualproperty, Roman jurists did discuss the different ownership interestsassociated with an intellectual work and how the work wascodified—e.g., the ownership of a painting and the ownership ofa table upon which the painting appears. There is also reference toliterary piracy by the Roman epigrammatist Martial. In this case,Fidentinus is caught reciting the works of Martial without citing thesource.

These examples are generally thought to be atypical; as far as weknow, there were no institutions or conventions of intellectualproperty protection in Ancient Greece or Rome. From Roman times to thebirth of the Florentine Republic, however, there were many franchises,privileges, and royal favors granted surrounding the rights tointellectual works. Bugbee distinguishes between franchises or royalfavors and systems of intellectual property in the following way:franchises and royal favors restrict access to intellectual worksalready in the public domain, thus these decrees take something fromthe people. An inventor, on the other hand, deprives the public ofnothing that existed prior to the act of invention (Bugbee 1967). Oneof the first statutes that protected authors’ rights was issuedby the Republic of Florence on June 19, 1421, to Filippo Brunelleschi,a famous architect. This statute not only recognized the rights ofauthors and inventors to the products of their intellectual efforts;it built in an incentive mechanism that became a prominent feature ofAnglo-American intellectual property protection. For several reasons,including Guild influence, the Florentine patent statute of 1421issued only the single patent to Brunelleschi. The basis of the firstlasting patent institution of intellectual property protection isfound in a 1474 statute of the Venetian Republic. This statuteappeared 150 years before England’s Statute of Monopolies;moreover, the system was sophisticated. The rights of inventors wererecognized, an incentive mechanism was included, compensation forinfringement was established, and a term limit on inventors’rights was imposed.

American institutions of intellectual property protection are based onthe English system that began with the Statute of Monopolies (1624)and the Statute of Anne (1710). The Statute of Monopolies grantedfourteen-year monopolies to authors and inventors and ended thepractice of granting rights to “non-original/new” ideas orworks already in the public domain. In contrast to patent institutionsin Europe, literary works remained largely unprotected until thearrival of Johannes Gutenberg’s printing press in the fifteenthcentury. Even then there were few true copyrights granted—mostwere grants, privileges, and monopolies.

The Statute of Anne (1710) is considered by scholars to be the firststatute of modern copyright. The statute begins:

“Whereas printers, booksellers, and other persons have latelyfrequently taken the liberty of printing, reprinting, and publishingbooks without the consent of the authors and proprietors … totheir very great detriment, and too often to the ruin of them andtheir families: for preventing therefore such practices for thefuture, and for the encouragement of learned men to compose and writeuse books, be it enacted …” (Great Britain,Statuteof Anne, 1710)

The law gave protection to the author by granting fourteen-yearcopyrights, with a fourteen-year renewal possible if the author wasstill alive.

In the landmark English caseMiller v. Taylor (1769), theinherent rights of authors to control what they produce, independentof statute or law, was affirmed. While this case was later overruledinDonaldson v. Becket (1774), the practice of recognizingthe rights of authors had begun. Over the following decades otherEuropean countries, including Belgium, Holland, Italy, andSwitzerland, followed the example set by England (Bugbee 1967).Various international treaties like the Berne Convention treaty andthe Trade-Related Aspects of Intellectual Property (TRIPS 1994)agreement have expanded the geographic scope of intellectual propertyprotection to include most of the globe.

2. The Domain of Intellectual Property

At the most practical level, the subject matter of intellectualproperty is largely codified in Anglo-American copyright, patent, andtrade secret law, as well as in the moral rights granted to authorsand inventors within the continental European doctrine. Although thesesystems of property encompass much of what is thought to count asintellectual property, they do not map out the entire landscape. Evenso, Anglo-American systems of copyright, patent, trade secret, andtrademark, along with certain continental doctrines, provide a richstarting point for understanding intellectual property (Moore 1998a).We will take them up in turn.

2.1 Copyright

The domain of copyright protection is original works of authorshipfixed in any tangible medium of expression (17 U.S.C. §102(1988)). Works that may be copyrighted include literary, musical,artistic, photographic, architectural, and cinematographic works;maps; and computer software. First, for something to be protected, itmust be fixed in a permanent or tangible medium of expression. For example, an expression could be chiseled into stone,printed in a book, or saved on a hard drive. Second, the workmust be “original”—the work must be theauthor’s own production; it cannot be the result of copying(Bleistein v. Donaldson Lithographing Co., 188 U.S. 239(1903)). Third, copyright does not extend to short phrases, titles, ornames as these to do not contain the minimum amount of authorshiprequired by copyright. A fourth requirement that limits thedomain of what can be copyrighted is that the expression must be“non-utilitarian” or “non-functional” innature. Utilitarian products, or products that are useful for work,fall, if they fall anywhere, within the domain of patents. Finally,rights only extend over the actual concrete expression and thederivatives of the expression—not to the abstract ideasthemselves. For example, Einstein’s Theory of Relativity, asexpressed in various articles and publications, is not protected undercopyright law. Someone else may read these publications and expressthe theory in her own words and even receive a copyright for herparticular expression. Some may find this troubling, but such rightsare outside the domain of copyright law. The individual who copiesabstract theories or ideas and expresses them in her own words may beguilty of plagiarism, but she cannot be held liable for copyrightinfringement.

There are five exclusive rights that copyright owners enjoy, and threemajor restrictions on the bundle. The five rights are: the right toreproduce the work, the right to adapt it or derive other works fromit, the right to distribute copies of the work, the right to displaythe work publicly, and the right to perform it publicly. Under U.S.copyright law, each of these rights may be individually parsed out andsold separately by the copyright owner. All five rights lapse afterthe lifetime of the author plus 70 years—or in the case of worksfor hire, the term is set at 95 years from publication or 120 yearsfrom creation, whichever comes first. Aside from limited duration (17U.S.C. §302), the rules of fair use (17 U.S.C. §107) andfirst sale (17 U.S.C. §109(a)) also restrict the rights ofcopyright owners. Although the notion of “fair use” isnotoriously hard to spell out, it is a generally recognized principleof Anglo-American copyright law that allows anyone to make limited useof another’s copyrighted work for such purposes as criticism,comment, news reporting, teaching, scholarship, and research. Forexample, fair use would cover a student using short quotes ofcopyrighted material for academic purposes. The “firstsale” rule prevents a copyright holder who has sold copies of aprotected work from later interfering with the subsequent sale ofthose copies. For example, a copyright holder could not place, as acondition of sale, that the work in question never be given to alibrary or thrift shop. In short, the owners of copies can dowhat they like with their property, short of violating the copyrightsmentioned above.

Additionally, copyright does not preclude independent creation (unlikepatents). For example, if Smith creates a short poem andJones independently creates the exact same poem. Both couldobtain copyrights to their original expressions.

2.2 The Creative Commons, Copyleft, and Licensing

As a modern workaround for the first sale rule, many online contentproviders, rather than selling a copy of a work, simply offerlicensing agreements (through click-wrap, shrink-wrap, etc.) thatallow only specific uses of protected content. These approaches toprotecting intellectual works are relatively new and seemingly buildupon the copyright systems already in place. For example, by usinglicensing agreements to guarantee different levels of downstreamaccess, the Creative Commons and Copyleft models seek to expand thecommons of thought and expression (Stallman 1997; Lessig 2004). Anowner may allow others to build upon a protected work provided thatthe “new” work is similarly accessible or usable. Notethat the moral bindingness of these contracts/agreements presupposeprior entitlements (hinting at the moral justifications offeredbelow). For example, if neither party to a Copyleft license owns orhas legitimate title to the intellectual work in question, then theresulting agreement/license will not be binding.Thus, CreativeCommons and Copyleft models are actually built upon ownership orentitlement claims to intellectual works.

2.3 Patents

The domain or subject matter of patent law is the invention anddiscovery of new and useful processes, machines, articles ofmanufacture, or compositions of matter. There are three types ofpatents recognized by US patent law: utility patents, design patents,and plant patents. Utility patents protect any new, useful, andnonobvious process, machine, article of manufacture, or composition ofmatter, as well as any new and useful improvement thereof. Designpatents protect any new, original, and ornamental design for anarticle of manufacture. Finally, the subject matter of a plant patentis any new variety of plant that is asexually propagated (e.g. rosebushes grown by cutting pieces of the stem). Patent protection is thestrongest form of intellectual property protection, in that atwenty-year exclusive monopoly is granted to the owner over anyexpression or implementation of the protected work (35 U.S.C.§101 (1988) and 35 U.S.C. §154(a)(2)).

As with copyright, there are restrictions on the domain of patentprotection. The U.S. Patent Act requires usefulness, novelty, andnon-obviousness of the subject matter. The usefulness requirement istypically deemed satisfied if the invention can accomplish at leastone of its intended purposes. Needless to say, given the expense ofobtaining a patent, most machines, articles of manufacture, andprocesses are useful in this minimal sense.

A more robust requirement on the subject matter of a patent is thatthe invention defined in the claim for patent protection must be newor novel. There are several categories or events, all defined bystatute, that can anticipate and invalidate a claim of a patent (35U.S.C. §101 (1988)). In general, the novelty requirementinvalidates patent claims if the invention was publicly known beforethe patent applicant invented it. For example, someone could notobtain a patent on the production of stained glass by mixing potashand sand, heating the mixture to 3000 Fahrenheit, and then addingdifferent metallic oxide powders to produce different colors, even ifthe inventor in this case independently came up with this process.

In addition to utility and novelty, the third restriction onpatentability is non-obviousness. United States patent law requiresthat the invention not be obvious to one ordinarily skilled in therelevant art at the time the invention was made. A hypotheticalindividual is constructed and the question is asked, “Would thisinvention be obvious to an expert in the relevant field?” If itwould be obvious to this imaginary individual then the patent claimfails the test (35 U.S.C. §103).

In return for public disclosure and the ensuing dissemination ofinformation, the patent holder is granted the right to make, use,sell, and authorize others to sell the patented item (35 U.S.C.§154 (1984 and Supp. 1989)). The bundle of rights conferred by apatent excludes others from making, using, or selling the inventionregardless of independent creation. Like copyright, patent rightslapse after a given period of time—20 years for utility andplant patents, 14 for design patents. But unlike copyright protection,during their period of applicability these rights preclude others whoindependently invent the same process or machine from being able topatent or market their invention.

2.4 Trade Secret

The subject matter of trade secret law is almost unlimited in terms ofthe content or subject matter that may be protected and typicallyrelies on private measures, rather than state action, to preserveexclusivity. “A trade secret is any information that can be usedin the operation of a business or other enterprise and that issufficiently valuable and secret to afford an actual or potentialeconomic advantage over others” (U.S. Legal Code, TheRestatement (Third) of Unfair Competition, 1995, §39). The secretmay be a formula for a chemical compound; a process of manufacturing,treating, or preserving materials; a pattern for a machine or otherdevice; or a list of customers. Trade secrets are not registeredwith a government agency.

The two major restrictions on the domain of trade secrets are therequirements of secrecy and competitive advantage. An intellectualwork is not a secret if it is generally known within the industry,published in trade journals, reference books, etc., or readilycopyable from products on the market.

Although trade secret rights have no built-in expiration, they areextremely limited in one important respect. Owners of trade secretshave exclusive rights to make use of the secret only as long as thesecret is maintained. If the secret is made public by the owner, thentrade secret protection lapses and anyone can make use of it.Moreover, owners’ rights do not exclude independent invention ordiscovery. Within the secrecy requirement, owners of trade secretsenjoy management rights and are protected from misappropriation. Thislatter protection is probably the most important right granted, giventhe proliferation of industrial espionage and employee theft ofintellectual works. If a trade secret is misappropriated and madepublic, courts may impose injunctive relief and damages. For example,if someone misappropriates a trade secret and publishes it on awebsite, courts may require deletion and payment of fines.

2.5 Trademark

The domain or subject matter of trademark is, generally speaking, thegood will or good name of a company. A trademark is any word, name,symbol, or device, or any combination thereof, adopted by amanufacturer or merchant to identify her goods and distinguish themfrom goods produced by others (15 U.S.C. §1127 (1988)). Some marks identify services rather than products.

A major restriction on what can count as a trademark is whether or notthe symbol is used in everyday language. In this respect, owners oftrademarks do not want their symbols to become too widely used becauseonce this occurs, the trademark lapses. An example of this restrictioneliminating a word from trademark protection is“aspirin”—as the word became a part of the commonculture, rights to exclusively use the trademark lapsed.

Ownership of a trademark confers upon the property holder the right touse a particular mark or symbol and the right to exclude others fromusing the same (or similar) mark or symbol. The duration of theserights is limited only in cases where the mark or symbol ceases torepresent a company or interest, or becomes entrenched as part of thecommon language or culture.

2.6 Protecting Mere Ideas

Outside of the regimes of copyright, patent, trade secret, andtrademark, there is a substantial set of case law that allowsindividuals to protect mere ideas as personal property. This system ofproperty is typically called the “law of ideas” (Nimmer1954, Epstein 1992). A highly publicized case in this area isBuchwald v. Paramount Pictures (13 U.S.P.Q. 2d 1497 (Cal.Super. Ct. 1990)), concerning the Eddie Murphy movieComing toAmerica. Buchwald approached Paramount Pictures with a movie ideaand it was agreed that if a movie was made following Buchwald’spremise he would receive compensation. Buchwald did not fix his idea,for example by writing it down, and thus copyright infringement didnot apply. After several years of false starts and negotiationsParamount notified Buchwald that the movie based on his idea was notgoing to be produced. Shortly after this notification,Coming toAmerica was released and credit was given to Eddie Murphy. Eventhough the movie supposedly lost money, Buchwald sued and receivedcompensation.

The law of ideas is typically applied in cases where individualsproduce ideas and submit them to corporations expecting to becompensated. In certain cases, when these ideas are used by thecorporation (or anyone) without authorization, compensation may berequired. Before concluding that an author has property rights to heridea(s), courts require the idea(s) to be novel or original(Murray v. National Broadcasting, 844 U.S. F2d 988 (SecondCir. 1988)) and concrete (Hamilton Nat’l Bank v. Belt(D.C. Cir. 1953)). Compensation is offered only in cases ofmisappropriation (Sellers v. American Broadcasting Co. (11thCir. 1982)).

2.7 Droits Morals: Continental Systems of Intellectual Property

Article 6bis of the Berne Convention articulates the notionof “moral rights” that are included in continentalEuropean intellectual property law. The doctrine protects the personalrights of creators, as distinguished from their economic rights, andis generally known in France as “droits morals” or“moral rights.” These moral rights consist of the right tocreate and to publish a work in any form desired, the creator’sright to claim the authorship of his work, the right to prevent anydeformation, mutilation or other modification thereof, the right towithdraw and destroy the work, the prohibition against excessivecriticism, and the prohibition against all other injuries to thecreator’s personality (Roeder 1940).

3. Justifications and Critiques

Arguments for intellectual property rights have generally taken one ofthree forms (Hughes 1988; Moore 2008). Personality theorists maintainthat intellectual property is an extension of individual personality.Utilitarians ground intellectual property rights in social progressand incentives to innovate. Lockeans argue that rights are justifiedin relation to labor and merit. To this we add a recent fourth strandof justification (Moore 2018). This more recent justification analyzescontent creation and access as a form of the prisoner’s dilemma.On grounds of prudence and self-interest, we each have reason to adoptand promote institutions that protect intellectual works. While eachof these strands of justification has its weaknesses, there are alsostrengths unique to each.

3.1 Personality-Based Justifications of Intellectual Property

Rather than focusing on incentives and consequences or labor and merit(see utilitarian and Lockean arguments below), the personalitytheorist argues that intellectual property is an extension ofindividual personality. Personality theorists such as Hegel maintainthat individuals have moral claims to their own talents, feelings,character traits, and experiences. We are self-owners in this sense.Control over physical and intellectual objects is essential forself-actualization—by expanding our selves outward beyond ourown minds and mixing these selves with tangible and intangible items,we both define ourselves and obtain control over our goals andprojects. For Hegel, the external actualization of the human willrequires property (Hegel 1821). Property rights are important in twoways according to this view. First, by controlling and manipulatingobjects, both tangible and intangible, our will takes form in theworld and we obtain a measure of freedom. Individuals may use theirphysical and intellectual property rights, for example, to shieldtheir private lives from public scrutiny and to facilitate life-longproject pursuit. Second, in some cases our personality becomes fusedwith an object—thus moral claims to control feelings, charactertraits, and experiences may be expanded to intangible works (Humboldt1792; Kohler 1969).

The right of divulgation, when and if an intellectual work is placedbefore the public, is grounded in justified possession or priorentitlements over the work in question and the wrongness of compellingspeech. A central wrong-making feature of violating therights of attribution and integrity is that, in the typical case, akind of misrepresentation or fraud occurs. For example, whenSmith changes a painting by Jones without notice, there is amisrepresentation being offered. As with attribution andintegrity, the right of withdraw could be protected by contractsthat determine the downstream uses of intellectual works.

3.1.1 Problems for Personality-Based Justifications of Intellectual Property

There are at least four problems with this view (Hughes 1988; Palmer2005; Schroeder 2006). First, it is not clear that we own ourfeelings, character traits, and experiences. While it is true that wehave possession of these things or that they are a part of each of us,an argument is needed to establish the relevant moral claims.

Second, even if it could be established that individuals own or havemoral claims to their personality, it does not automatically followthat such claims are expanded when personalities become infused intangible or intangible works. Rather than establishing property claimsto such works, perhaps we should view this as an abandonment ofpersonality—similar to the sloughing off of hair and skin cells.Moreover, misrepresenting an intellectual work (assuming there are nomoral rights to these expressions) might change the perception of anauthor’s personality, but it would not in fact change theirpersonality.

Third, assuming that moral claims to personality could be expanded totangible or intangible items, we would still need an argumentjustifying property rights. Personality-based moral claims may warrantnothing more than use rights or prohibitions against alteration.Finally, there are many intellectual innovations in which there is noevidence of a creator’s personality—a list of customers ora new safety-pin design, for instance (Hughes 1988). Given thesechallenges, personality-based theories may not provide a strong moralfoundation for legal systems of intellectual property.

3.1.2 The Personality Theorist’s Rejoinder

Even if we acknowledge the force of these objections, there does seemto be something intuitively appealing about personality-based theoriesof intellectual property rights. Suppose, for example, that Mr. Fridaybuys a painting at a garage sale—a long-lost Crusoe original.Friday takes the painting home and alters the painting with a marker,drawing horns and mustaches on the figures in the painting. Theadditions are so clever and fit so nicely into the painting thatFriday hangs it in a window on a busy street. There are at least twoethical worries to consider in this case. First, the alterations byFriday may cause unjustified economic damage to Crusoe. Second, andindependent of the economic considerations, Friday’s actions maydamage Crusoe’s reputation. The integrity of the painting hasbeen violated without the consent of the author, perhaps causinglong-term damage to his reputation and community standing. If theseclaims are sensible, then it appears that we are acknowledgingpersonality-based moral “strings” attaching to certainintellectual works. By producing intellectual works, authors andinventors put themselves on display, so-to-speak, and incur certainrisks. Intellectual property rights afford authors and inventors ameasure of control over this risk. To put the point a different way,it is the moral claims that attach to personality, reputation, and thephysical embodiments of these individual goods that justify legalrules covering damage to reputation and certain sorts of economiclosses.

There is also the issue of compelled speech. Friday, in thisexample, is misrepresenting Crusoe and compelling him to discussthe changes, integrity, and original intent of the intellectualwork. Instances of plagiarism and forgery are also example ofmisrepresentation and fraud.

Moreover, personality-based theories of intellectual property oftenappeal to other moral considerations. Hegel’s personality-basedjustification of intellectual property rights included anincentive-based component as well—he asserts that protecting thesciences promotes them, benefiting society (Hegel 1821). Perhaps thebest way to protect these intuitively attractive personality-basedclaims to intangible works is to adopt a more comprehensive systemdesigned to promote progress and social utility.

3.2 The Utilitarian Incentives-Based Argument for Intellectual Property

In terms of “justification,” modern Anglo-American systemsof intellectual property are typically modeled as incentive-based andutilitarian (Oppenheim 1951; Machlup 1962; Boonin 1989; Hettinger1989; Mackaay 1990; Coskery 1993; Palmer 1997; Moore 2001, Lemley2015). On this view, a necessary condition for promoting the creationof valuable intellectual works is granting limited rights of ownershipto authors and inventors. Absent certain guarantees, authors andinventors might not engage in producing intellectual property.Although success is not ensured by granting these rights, failure isinevitable if those who incur no investment costs can seize andreproduce the intellectual effort of others. Adopting systems ofprotection like copyright, patent, and trade secret yields an optimalamount of intellectual works being produced, and a correspondingoptimal amount of social utility. Coupled with the theoretical claimthat society ought to maximize social utility, we arrive at a simpleyet powerful argument for the protection of intellectual propertyrights.

It is crucial to note that the issue of whether intellectual propertyprotection does, or does not, sufficiently promote human happiness orwell-being is an empirical question. Whether or not, for example,intellectual property protection provides an incentive that elicitssome optimal output of content creation can be settled only by lookingto the empirical evidence. Likewise, whether or not intellectualproperty protection has the effect of hindering innovation andinhibiting the production of novel valuable content can be settledonly by empirical analysis. The difficulties involved in obtainingsuch evidence suggest that the empirical question will remain debatedfor some time. Complicating the task is the fact that the efficacy orlack thereof of intellectual protection in promoting well-being seemsto vary from one industry to the next (Lemley 2015).

On the positive side there are numerous authors who claim that theempirical evidence is now squarely in favor of intellectual propertyprotection. The tragedy of a ‘no-protection rule’ issecrecy, restricted markets, and lost opportunities (Miners &Staff 1990; Mossoff 2015; O’Connor 2016). William Fishernotes:

Potential innovators will know that, once they reveal theirbreakthroughs to the world, other people will be able to takeadvantage of them for free. Consequently, the innovators will beunable to recoup the costs of their innovations (the costs of theeducation they underwent to prepare them to make the innovations, theoutlay for research and development, their opportunity costs, etc.).Aware of this risk, potential innovators will devote their energies toother, more lucrative activities, and society at large will suffer.(Fisher 2001)

Robert J. Barro and Xavier Sala-I-Martin note that over the long runthe world’s growth rate is largely:

driven by discoveries in the technologically leading economies.Followers converge at least part way toward the leaders becausecopying is cheaper than innovation over some range. As the pool ofuncopied ideas diminishes, the cost of imitation tends toincrease…the consequence from the absence of intellectualproperty rights across economies…[is] the leading places tendto have insufficient incentive to invent, and the follower places tendto have excessive incentive to copy. (Barro & Sala-I-Martin 1997)

Professor Petra Moser makes the following observation:

In countries without patent laws, inventors depend entirely onsecrecy, lead-time, and other alternatives to patents in protectingtheir intellectual property. As a result, investments in research anddevelopment may be most attractive in industries in which secrecy caneffectively guarantee exclusive rights long enough to allow inventorsto recoup their investments. (Moser 2013)

While much of the economic literature in this area focuses on patents,similar points can be made with respect to copyright. With the ease ofcopying and distribution afforded by modern digital networks, contentcreators would seem to be at a serious disadvantage compared tocopiers. Without copyright there would be nothing to stop copiersfrom simply copying movies, books, articles, and music and selling,trading, or allowing others to make free copies. Michael Smithand Rahul Telang, argue that piracy harms both producers and consumersby undermining the income streams of producers, resulting in lesscontent being created (Smith & Telang 2016). SeanO’Connor notes, “it should be clear that no one wouldinvest without some appropriation mechanism that would provide themwith a favorable return on their investment through the monetizationof the commercialized goods or services. If they cannot see a way toget such a return, they will not make theinvestment” (O’Connor 2015).

3.2.2 Problems for the Utilitarian Incentives-Based Argument

On the negative side there are many who argue that “the jury isout” or that systems of IP protection actually hinder innovativeactivity (Machlup 1958; Schiff 1971; Palmer 1990; Boldrin & Levine2007). On patent protection, Fritz Machlup (1958) wrote “Noeconomist, on the basis of present knowledge, could possibly statewith certainty that the patent system, as it now operates, confers anet benefit or a net loss upon society” (Machlup 1958).Nevertheless, Machlup went on to argue that such considerations do notyield the conclusion that we should abolish patent protection.Professors Michele Boldrin and David Levine argue that a ‘firstmover advantage,’ coupled with secrecy and add-on services, issufficient as an incentive for creation and discovery (Boldrin &Levine 2007). Tom Palmer made a similar point seventeen years earlier,arguing that intellectual works should be protected via technologicalfences and contracts, along with bundling in other products andservices (Palmer 1990).

Given that the utilitarian argument rests on providing incentives,what is needed to critique it are cases that illustrate better ways,or equally good ways, of stimulating production without grantingprivate property rights to authors and inventors. It would be betterto establish equally powerful incentives for the production ofintellectual property that did not also require initial restricted useguaranteed by rights (Polanyi 1943; Machlup 1962; Hettinger 1989;Waldron 1993; Moore 2003; Wright 1998).

One alternative to granting intellectual property rights to inventorsas incentive is government support of intellectual labor (Hettinger1989; Calandrillo 1998). This could take the form of government-fundedresearch projects, with the results immediately becoming publicproperty. The question becomes: can government support of intellectuallabor provide enough incentive to authors and inventors so that anequal or greater amount of intellectual products are created comparedto what is produced by conferring limited property rights? Betterresults may also be had if fewer intellectual works of higher qualitywere distributed to more people.

Unlike a government-supported system of intellectual property rights,reward models may be able to avoid the problems of allowing monopolycontrol and restricting access, and at the same time provideincentives to innovate (Shavell and Van Ypersele 2001). In this model,innovators would still burn the midnight oil chasing that pot of gold,and governments would not have to decide which projects to fund ordetermine the amount of the rewards before the works’“social value” was known. Funds necessary to pay therewards could be drawn from taxes or collecting percentages of theprofits of these innovations. Reward models may also avoid thedisadvantages of monopoly pricing, and obstructions to furtheradaptation and innovation.

Trade secret protection appears to be the most troubling from autilitarian incentives-based perspective (Hettinger 1989). Given thatno disclosure is necessary for trade secret protection, promotingtrade secrets through incentives yields no reciprocal long-term socialbenefit. Trade secret protection allows authors and inventors theright to slow the dissemination of protected informationindefinitely—a trade secret necessarily requires secrecy.

3.2.3 The Utilitarian Rejoinder

The utilitarian who defends the incentives argument may well agreewith many of these criticisms and still maintain that intellectualproperty rights, in some form, are justified—the current systemof protection is better than government support of intellectualproperty creation, reward models, or nothing at all. Additionally,most of the worries surrounding the incentive-based approach appear tofocus on problems of implementation. We could tinker with our systemof intellectual property, cutting back on some legal protections andstrengthening others (Coskery 1993; Moore 2008). Perhaps we couldinclude more personality-based restrictions on what can be done withan intangible work after the first sale, limit the term of copyrights,patents, and trade secrets to something more reasonable, and find waysto embrace technologies that promote access while protectingincentives to innovate. The utilitarian might also remind us of thecosts of changing our system of intellectual property. The ‘jurymay be out’ so-to-speak regarding the economic advantages of legalprotections for intellectual works, but the social and economic costsof radically changing these institutions at this point would be overlyburdensome.

3.3 Lockean Justifications of Intellectual Property

A different strategy for justifying intellectual property rightsbegins with the claim that individuals are entitled to control thefruits of their labor (Locke 1690; Hettinger 1989; Becker 1993; Gordon1993; Moore 1998b; Hughes 1988; Palmer 2005; Himma 2005a, 2006, 2008,2013; Merges 2011). In general, the intuition is that the person whoclears unowned land, cultivates crops, builds a house, or creates anew invention obtains property rights by engaging in these activities.Laboring, producing, thinking, and persevering are voluntary, andindividuals who engage in these activities are entitled to what theyproduce. Subject to certain restrictions, rights are generated whenindividuals mix their labor with an unowned object. Restrictions orlimits on acquisition include a labor requirement, a non-wasterequirement, and the “enough and as good” proviso (Locke1690). Labor, for Locke, is best understood as metaphor for productiveactivities needed to sustain and promote human flourishing (Mossoff2012). The non-waste requirement invalidates a property claim if theappropriator takes more than she can consume or use without spoilage.Unlike the labor metaphor, spoilage for Locke means rotting or thedestruction of an existing good useful for sustaining human life.Finally, the “enough and as good” proviso is bestillustrated by an example Locke gives. When someone takes a drink ofwater from a river it is as if he takes nothing at all. His fellowsare, all things considered, unaffected by this acquisition.

Consider a more formal version of Locke’s famous argument.Individuals own their own bodies and labor—i.e., they areself-owners. When an individual labors on an unowned object, her laborbecomes infused in the object and for the most part, the labor and theobject cannot be separated. It follows that once a person’slabor is joined with an unowned object, assuming that individualsexclusively own their body and labor, rights to control are generated.The idea is that there is an expansion of rights: we each own ourlabor and when that labor is mixed with objects in the commons, ourrights are expanded to include these goods.

In terms of intellectual property, the act of creation or discoverytypically takes time, effort, and skill. Intellectual worksdon’t spoil like apples, so there are no“non-waste” concerns. Moreover, the creation or discoveryseemingly leaves “enough and as good.” Creating a poem,for example, and holding it as a secret does not preclude others fromcreating their own poems.

3.3.1 Objections to Locke

Locke’s argument is not without difficulties. Jeremy Waldron(1983) argued that the idea of mixing one’s labor isincoherent—actions cannot be mixed with objects. P. J. Proudhon(1840) argued that if labor was important, the second labor on anobject should ground a property right in an object as reliably as thefirst labor. Nozick (1974) asked why labor mixing generated propertyrights rather than a loss of labor. Waldron (1983) and Perry (1978)have argued that mixing one’s labor with an unowned objectshould yield more limited rights than rights of full ownership.Finally, if the skills, tools, and inventions used in laboring aresocial products, then perhaps individual claims to title have beenundermined (Grant 1987; Hettinger 1989).

3.3.2 The Lockean Rejoinder

Among defenders of Lockean-based arguments for private property, thesechallenges have not gone unnoticed (Spooner 1855; Schmidtz 1990; Mack1990; Simmons 1992; Child 1990; Moore 2001; Mossoff 2012; Claeys2017). Rather than rehearsing the points and counterpoints, consider amodified version of the Lockean argument—one that does not soeasily fall prey to the objections mentioned above.

After weeks of effort and numerous failures, suppose Ginger comes upwith an excellent new recipe for spicy noodles—a recipe that shekeeps in her mind and does not write down. Would anyone argue thatGinger does not have at least some minimal moral claim to control therecipe? Suppose that Fred samples some of Ginger’s noodles anddesires to purchase the recipe. Is there anything morally suspiciouswith an agreement between them that grants Fred a limited right to useGinger’s recipe provided that Fred does not disclose theprocess? Alas, Fred didn’t have to agree to the terms and, nomatter how tasty the noodles, he could eat something else or createhis own recipe. Arguably, part of the moral weightiness of theagreement between Ginger and Fred relies on the fact that Ginger holdslegitimate title to the recipe. A slightly different way to putthis Lockean argument for intellectual property rights is:

Step One: The Generation of Prima Facie Claims to Control– Suppose Ginger creates a new intellectual work –creation, effort, etc., yield her prima facie claims to control(similar to student desert for a grade).
Step Two: Locke’s Proviso – If the acquisition ofan intellectual object makes no one (else) worse off in terms of theirlevel of well-being compared to how they were immediately before theacquisition, then the taking is permitted.
Step Three: From Prima Facie Claims to Property Rights– When are prima facie claims to control an intellectual workundefeated? Answer: when the proviso is satisfied. Alas, no oneelse has been worsened – who could complain?
Conclusion: So long as no harm is done – the proviso issatisfied – the prima facie claims that labor and effort maygenerate turn into property claims (Moore 2012).

In small communities it may even be possible to contract with all ofone’s fellows securing all or some of the bundle of fullownership. In this sort of example, every single member of thecommunity would be directly part of the agreement. Ginger says to herpeers, “if you want access to my recipe, then you will have toagree to my right to enjoy income” and they reply “butsuch rights can’t be indefinite … we as a communitywon’t be on the hook for defending this agreementindefinitely.” In the ensuing give-and-take an agreement ishammered out. It is important to note that the moral bindingness ofsuch an agreement is crucially dependent on the initial set ofentitlement claims generated by labor, desert, and non-worsening. IfGinger, in this case, was not the author of the recipe — supposeshe took it from someone else — it is not at all clear that theresulting contract would be morally or legally binding.

Moving from small communities to larger ones a more general form ofagreement between authors, inventors, and society can be considered.If intellectual works are to be held as anything other than tradesecrets, walled off with narrow contracts like non-disclosureagreements or non-competition arrangements, there must be a way ofsecuring access. Society may purchase access by offering limitedrights to authors and inventors. Moreover, if some society does notoffer this sort of protection, then innovators would likely employtheir talents in other areas or simply move to a society where suchagreements are recognized.

3.4 Intellectual Property and the Prisoner’s Dilemma

A major concern and limitation on the traditional justifications forintellectual property already discussed is that many scholars rejectthe starting assumptions needed to generate the desired moral claims.For example, non-utilitarians will dismiss the theoretical foundationsof utilitarianism. Non-Lockeans will reject Locke’s commitmentto self-ownership, natural rights, and individual flourishing.Building off of the positive economic analysis mentioned in theutilitarian justification for IP discussed above, Moore (2018) offersa different sort of argument based on individual prudence and selfinterest. Note that this argument, while concerned with consequences,is not focused on maximizing human well-being or flourishing.

Consider the following case. Imagine that we have two intellectualproperty creators, Beren and Lúthien, and two possible outcomesfor each. In a single-play prisoner’s dilemma game, each playercan copy an intellectual creation of the other, or not. Assume as wellthat the intellectual works created by Beren and Lúthien arevaluable, interesting, or desired. The best case for either player isone where their own intellectual creation is not copied and yet theyget to copy the work of the other player. This is ‘best’for the player who copies and ‘worst’ for the player whodoesn’t because, (1) the player who copies gets to enjoy orconsume more content compared to the other player, (2) the player whocopies still has the option or possibility of obtaining benefit byselling, trading, or bartering with the other player, while thenon-copier does not enjoy these possibilities — this provides away to recoup research and development costs, and (3) via selling,trading, or bartering the copier may obtain a positional advantage andmore capital for future exchanges compared to the non-copier. Simplyput, the copier obtains more content and retains more opportunities tosell, barter, or exchange compared to the non-copier. If Beren andLúthien both refrain from copying each other, then each willavoid the worst outcome in terms of recouping investment costs andbeing at a positional disadvantage. Both will also retain the optionof buying or bartering for the non-copied content the other enjoys.This payoff is ‘okay,’ better than ‘worst’ butnot as good as ‘best.’ If both Beren and Lúthiencopy each other, then both will get extra content to enjoy and willnot be put at a positional disadvantage, but each will be denied thepossibility of recouping research and development costs. The otherplayer will not buy or barter for content he already possesses. Thesepayoffs mirror a prisoner’s dilemma game (Axelrod 198,1984, Skyrms 1990, Binmore 2015, Holt, Johnsonand Schmidtz 2015).

In modeling content creation, access, and copying as an iteratedprisoner’s dilemma between numerous individuals, the problembecomes even more salient. It will be individually rational to copythe intellectual efforts and creations of others. This will suppressinnovation and lead to a sub-optimal result. Based solely on rationalself-interest and prudence, Moore argues we should adopt institutionsthat promote innovation and allow inventors the capacity to recoupresearch and development costs. If copying becomes too widespread orif enforcement mechanisms fail, then we will likely spiral toward thecollectively sub-optimal result of suppressing innovation. We seesimilar results of an intellectual property prisoner’s dilemmaplayed out between nations. Through the use of sanctions againstcopying the intellectual efforts of others, we give ourselvescompelling reasons to pursue a collectively superior outcome.

4. General Critiques of Intellectual Property

Putting aside the strands of argument that seek to justify moralclaims to intangible works and the rather focused problems with theseviews, there are several general critiques of the rights to controlintellectual property to consider.

4.1 Information is Not Property

Critics argue that information is not the kind of thing that can beowned or possessed and is not something that can be property, as thatnotion is typically defined. Information objects, such as numbers andpropositions are abstract objects, which cannot causally interact withmaterial objects, and hence cannot be owned or possessed. The idea,for example, that one could, in the relevant sense, possess and henceown the novel expressed by the bookA Tale of Two Citiesmakes as little sense as the idea that one could possess and hence ownthe entity denoted by the symbol “2.” Whatever conceptsmight properly be applied to abstract objects, on this view, theconcept of property, according to these theorists, does not. As aconceptual matter, the term “intellectual property,” atbest, applies to nothing and, at worst, is incoherent.

This analysis is vulnerable to at least two objections. First, it isnot clear that ownership, as a conceptual matter, requires physicalpossession. One can argue that the essence of ownership consists in apower — the power to exclude others from certain behaviorsinvolving the relevant entity — and not in physical control orpossession of the entity. Second, the claim that information objectscannot be property does not imply that it is illegitimate to grant toauthors or content-creators a legal right to exclude others fromappropriating those objects without their consent. That some entity Eis not “property” implies only that it should not belegally protected qua property; it does not imply that E should not beprotected in very similar ways. It might be that such legal rightsshould be called something other than “intellectual propertyrights,” but these rights could be called something else, suchas, for example, “intellectual content rights.”

4.2 Information is Non-Rivalrous

Many have argued that the non-rivalrous nature of intellectual worksgrounds a prima facie case against rights to restrict access. Sinceintellectual works are not typically consumed by their use and can beused by many individuals concurrently (making a copy does not depriveanyone of their possessions), we have a strong case against moral andlegal intellectual property rights (Kuflik 1989; Hettinger 1989;Barlow 1997). One reason for the widespread pirating of intellectualworks is that many people think restricting access to these works isunjustified. Consider a more formal version of this argument:

P1.: If a tangible or intangible work can be used and consumed by manyindividuals concurrently (is non-rivalrous), then maximal access anduse should be permitted.
P2.: Intellectual works falling under the domains of copyright, patent,and trade secret protection are non-rivalrous.
C3.: It follows that there is an immediate prima facie caseagainst intellectual property rights, orforallowing maximal access to intellectual works.

The weak point in this argument is the first premise (Moore 2012;Himma, 2005b). Consider sensitive personal information. Moore arguesthat it false to claim that just because this information can be usedand consumed by many individuals concurrently, a prima facie moralclaim to maximal access is established. This argument applies as wellto snuff films, obscene pornography, information related to nationalsecurity, personal financial information, and private thoughts; eachare non-rivalrous, but this fact does not by itself generate primafacie moral claims for maximal access and use. Moreover, it is notclear that unauthorized copying does no harm to the owner even incases where the copier would not have purchased a copy legitimately(and thus is not denying the owner economic compensation they wouldotherwise receive). Unauthorized copying creates un-consented to risksthat owners must shoulder.

Himma points out that, by itself, the claim that consumption ofinformation is non-rivalrous does not imply that we have a right ofany kind to those objects. While this certainly provides a reasonagainst thinking protection of intellectual property is morallyjustified, it does not tell us anything about whether we have a rightof some sort because it does not contain any information about morallyrelevant properties of human beings—and the justification ofgeneral rights-claims necessarily rests on attributions of value thatimplicitly respond to interests of beings with the appropriate levelof moral standing—in our case, our status as persons (Himma2005b).

4.3 Information Wants to be Free

Barlow (1997) argues that information is entitled to moralconsideration in virtue of being alive. On his view, information is aform of life with a claim to be free that is grounded in interests and“wants” of its own. As he puts the point, informationobjects “are life forms in every respect but a basis in thecarbon atom. They self-reproduce, they interact with theirsurroundings and adapt to them, they mutate, they persist.”Further, these living information objects have some sort of interestin being made available to everyone free of charge.

Barlow’s argument can be challenged on a couple of grounds.First, Himma (2005b) argues that it is simply implausible to think ofabstract objects as having wants — or even interests. Theconcept of desire is such that only conscious beings are capable ofhaving desires; although a conscious being can have subconsciousdesires, non-sentient entitles are no more accurately characterized ashaving desires than as having hopes. Second, even if informationobjects had wants or interests, Barlow gives no reason for thinkingthat they have a desire to, or interest in being made freely availableto all. Certainly, the claim that being made freely available to allsomehow benefits information objects needs an argument if for no otherreason than that it is counterintuitive.

4.4 The Free Speech Argument against Intellectual Property

According to some, promoting intellectual property rights isinconsistent with our commitment to freedom of thought and speech(Nimmer 1970; Hettinger 1989; Waldron 1993). Closely associated withthis argument is the position that individuals have a right toknowledge and intellectual property institutions interfere with thisbasic right. Hettinger argues that intellectual property“restricts methods of acquiring ideas (as do trade secrets), itrestricts the use of ideas (as do patents), and it restricts theexpression of ideas (as do copyrights)—restrictions undesirablefor a number of reasons” (Hettinger 1989). Hettinger singles outtrade secrets as the most troublesome because, unlike patents andcopyrights, they do not require disclosure.

Three sorts of replies have been offered to this kind of worry (Himma2006; Moore 2012). While we focus on the free speech argument againstintellectual property, right to know arguments fall prey to similarobjections. The first objection notes that it is the incentives foundin providing limited protection that fosters the creation anddissemination of information—a system of intellectual propertyprotection may cause restricted access in the short run, but overall,the commons of thought and expression is enhanced. Simply put,in the long run we get more to talk about, consume, andenjoy because of the incentives afforded by copyrights andpatents.

Second, it is not at all clear that free speech is so presumptivelyweighty that it nearly always trumps other values. Shouting at someoneover a bullhorn all day is not something we would countenance asprotected free speech. Hate speech, obscene expressions, sexualharassment, and broadcasting private medical information about othersare each examples of speech that we are willing to limit for variousreasons—perhaps intellectual property rights can be viewed inthis light.

Finally, consider the contentious, yet established, idea/expressionrule of copyright. Copyright only applies to fixed expressions, not tothe ideas that may make up a fixed expression. For example, someonemay read Darwin’s original writings on evolution, express theseideas in her own words, and obtain a copyright in the new expression.This individual may be guilty of plagiarism, but so long as herexpressions are not copied from Darwin’s original orsubstantially similar to the original, she can obtain a copyright.Copyrights and patents require disclosure and thus the ideas that makeup these intellectual works may be discussed and analyzed.

4.4 The Social Nature of Information Argument

According to this view, information is a social product and enforcingaccess restrictions unduly benefits authors and inventors. Individualsare raised in societies that endow them with knowledge which theseindividuals then use to create intellectual works of all kinds. Onthis view the building blocks of intellectualworks—knowledge—is a social product. Individuals shouldnot have exclusive and perpetual ownership of the works that theycreate because these works are built upon the shared knowledge ofsociety. Allowing rights to intellectual works would be similar togranting ownership to the individual who placed the last brick in apublic works dam. The dam is a social product, built up by the effortsof hundreds, and knowledge, upon which all intellectual works arebuilt, is built up in a similar fashion (Proudhon 1840; Grant 1987;Shapiro 1991; Simmons 1992, Boyle 1997).

Beyond challenging whether the notion of “society”employed in this view is clear enough to carry the weight that theargument demands, critics have questioned the view that societies canbeowed something or that they canown ordeservesomething (Spooner 1855; Nozick 1974; Moore2012). Lysander Spooner writes:

“What rights society has, in ideas, which they did notproduce, and have never purchased, it would probably be very difficultto define; and equally difficult to explainhow societybecame possessed of those rights. It certainly requires something morethan assertion, to prove that by simply coming to a knowledge ofcertain ideas—the products of individual labor—societyacquires any valid title to them, or, consequently, anyrights in them” (Spooner 1855).

The problem of how individuals acquire property rights (personality,utilitarian, Lockean, etc.) now applies to how societies obtain theserights.

Moore charges that defenders of the social nature argument againstintellectual property fail to see that it may prove too much.

But like the defender of the first cause argument for the existence ofGod who rides the principle of sufficient causation to a certain pointand then conveniently abandons it (every event or object needs asufficient cause and nothing is self-causedexcept God) theproponent of the “shared culture” view is guilty of asimilar trick. “Shared culture” or the social nature ofintellectual property view is sufficient for undermining intellectualproperty rights or robust control of intellectual works, butconveniently not strong enough to undermine student desert for agrade, criminal punishment, or other sorts of moral evaluation (Moore2012).

Finally, even if a defender of this view can justify societalownership of general pools of knowledge and information, it could beargued that we have already paid for the use of this collective wisdomwhen we pay for education and the like.

4.6 The Cost of Publishing Digital Information

Coy (2007) argues is that, in a competitive market, the cost ofinformation should properly reflect the cost of making it available tousers. On this line of analysis, while the cost of making publishinginformation in traditional material media like books might besufficiently high to justify charging users a price for it, the cost(per user) of making information available on digital media approacheszero as the number of users grow larger. For example, there might besome fixed cost involved in making information available on a website,but no additional cost is required beyond that to make that contentavailable to any number of users; the more users appropriating theinformation, the lower the cost of making it available to anyparticular user. Thus, the argument concludes, it would be unfair tocharge users a fee for appropriating any piece of (digital)information; information should be free (or nearly free) so as toreflect its dissemination costs.

There are two problems with this argument. First, if one accepts thelegitimacy of free enterprise, as appears to be presupposed by theabove argument, then what is a fair price will be determined by thevoluntary interactions of buyers and sellers in a competitive market:the fair price is that which is set by the contractual transactions offree, prudentially-rational buyers and sellers. If buyers in acompetitive market are willing to pay a price for digital informationthat is significantly higher than the seller’s marginal cost,then that price can be presumed fair. Second, the argument overlooksthe fact that the fixed costs associated with producing anddistributing intellectual content can be quite high. For example, theDisney Company spent more than $100 million in making the filmWest Side Story in 2021. If one assumes that a fair price issuch as to allow the producer to recover the fixed development costsassociated with producing and distributing intellectual content, thiswould entail that it is fair for content producers to charge a pricethat is sufficiently above the marginal costs to allow them to recoverthese fixed costs.

4.7 The Liberty Objection to Intellectual Property

When an individual owns a physical item her rights exclude others frominterfering with her control of it. But intellectualproperty rights sweep across the entire domain of humanaction, restricting individual liberty even in the privacy ofone’s own home. “How can the artist, copyright orpatent holder determine what I can do with my stuff?” Manyhave attacked the notion of intellectual property on the grounds thatit violates individual liberty rights (Palmer 1990). Tom Palmerargues,

Liberty and intellectual property seem to be at odds, for whileproperty in tangible objects limits actions only with respect toparticular goods, property in ideal objects restricts an entire rangeof actions unlimited by place or time, involving legitimately ownedproperty (VCRs, tape recorders, typewriters, the human voice, andmore) by all but those privileged to receive monopoly grants from thestate (Palmer 1990).

There are at least two replies to this sort of worry. First, theproblem may be addressed by adopting specific legal rules. Forexample, current Anglo-American institutions of intellectual propertyhave built in provisions that limit the rights of authors andinventors. These limitations, for example “fair use”(17 U.S.C. §107) and “first sale” (17 U.S.C.§109(a)) allow individuals to use a patented or copyrightedwork for personal use, non-profit, or educational purposes. Undercurrent law it is permissible to make back-up copies of computergames or to copy a chapter of a book from the library. Perhapsthese kinds of limitations could be built into the bargain betweensociety and those who create intellectual works.

A second reply is that rights of all sorts restrict whatindividuals can do with their bodies and property. Restrictingindividual liberty is no more a feature of intellectualproperty than of other sorts of rights. Physical propertyrights to a car, for example, prohibit all of humanity fromswinging a bat and damaging the car in question. Even in theprivacy of your own home it is not legally permissible to punchsomeone in the face, destroy avisitor’s personal property, or engage in risky activitiesthat threaten one’s neighbors.

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