I was talking to a friend recently (not a lawyer, but a well-informed techie), and our conversation turned indirectly to natural right theories of intellectual property. It came up, as the theory often does, with him making a variant on the argument that “it’s not fair for people to get the advantage of someone else’s invention without paying for it.” This is the classic free-rider argument as applied to intellectual property. Although the majority of IP scholars believe that natural rights theories are nearly useless in crafting IP laws, for example, see this article by Mark Lemley, natural rights arguments still resonate strongly with the public. This is too bad, because it actually muddies the waters when talking about intellectual property.
The core of the problem may be the term “intellectual property” itself. Tom Bell has suggested describing intellectual property as a form of government subsidy, specifically, as welfare. It’s interesting to think about the difference this rhetorical switch could make.
But why is it fair to say that intellectual property should not necessarily be thought of as property at all? The shortest answer is that it’s only property because the law says it is property. This is a circular answer to a circular question. Basically, it’s only "unfair" to not pay an inventor to use her intellectual "property" if she has a government-given right to stop you from using it in the first place. And nothing about the nature of an idea makes it something that an inventor should by right be able to control. Using an inventor’s idea of how to build a better mousetrap does not stop the inventor from using the idea to trap her own rats. That's why my boss, Larry Lessig, in his book The Future of Ideas calls ideas “non-rivalrous goods,” because other people can enjoy an inventor's idea without depriving her of it.
Thomas Jefferson famously put it this way: “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.”
So the real question regarding intellectual property is not “how do we protect it from being used by others?”; but “how do we encourage as much useful intellectual property as possible to be produced for the benefit of others?” The current IP regime encourages production by granting limited-time monopolies to inventors. In effect, patents and copyrights act as a tax on the public to encourage the production of intellectual property. So Tom Bell is right, patents and copyrights are a form of government subsidy: they are welfare given to inventors for the purpose of increasing the General Welfare.
But how to better get this across to the general public (and Congress) in the face of RIAA-style natural rights propaganda? I suggest replacing the term “intellectual property” in your daily conversations with the term “innovator’s vested welfare right in a share of the monopolistic user tax imposed by the Government for certain uses of the innovator’s idea.” Catchy, no?