Are Patents and Copyrights Morally Justified? - Tom G. Palmer

No. 3] Are Patents and Copyrights MorallyJusted? 825
the surplus capacity of a single idea, beyond the personal use of
the producer—by which I mean the capacity ofa single idea to
be used by other persons simultaneously~with the producer,
without collision with him.” 28
A similar argument, but one that stops short of property
rights in perpetuity, is offered by Ayn Rand. Rand states, “patents
and copyrights are the legal implementation ofthe base of
all property rights: a man’s right to the product ofhis mind.” 29
Patents and copyrights are moral rights, and not merely legal
rights: “The government does not ‘grant’ a patent or copyright,
in the sense of a gift, privilege, or favor; the government
merely secures it—[that is], the government certifies the origination
ofan idea and protects its owner’s exclusive right ofuse
and disposal.” 3 ° Like many other advocates of intellectual
property rights, Rand sees patents as the highest form of property:
“the heart and core ofproperty rights.” TM
In stopping short of granting to scientists and mathematicians
rights to the facts or theories they discover, Rand relies
on the same general moral principles as Spooner in her defense
ofthe right to intellectual property, but adds a twist. Because
ofher focus on the role of “productive work” in human
happiness, she advocates limits on the temporal duration ofintellectual
property:
[Ijntellectual property cannot be consumed. Ifit were held
in perpetuity, it would leadto the oppositeof the very principle
on which it is based: it would lead, not to the earned
reward ofachievement, but to theunearned support ofparasitism.
It would become a cumulative lien on the production
of unborn generations, which would immediately paralyze
them.. . - The inheritance ofmaterial property represents a
dynamic claim on a static amount ofwealth; the inheritance
of intellectual property represents a static claim on a dynamic
process of production. 32
Herbert Spencer, who testified or behalfof copyright before
the Royal Commission of 1878, presented an argument for patents
and copyrights based on moral desert. 33 “[J]ustice under
its positive aspect,” he argued, “consists in the reception by
28. Id. at 94.
29. Rand, Patents and Copyrights, in CAPITALISM: THE UNKNOWN IDEAL 130 (1967).
30. Id. at 126.
51. Id. at 128.
52. Id. at 127.
33. See II H. SPENCER, THE PRINCIPL~SOF EThIcs 121 (F. Machan ed. 1978) (1893).