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

No. 3] Are Patents and Copyrights Morally Justified? 839
When it comes to intellectual property, Hegel does not go
nearly as far as his epigoni, such as Gierke and Kohler. Like
Kant, he offers great protection to literary works, but very little
to the plastic arts. Kant argued for the protection of literary
works in his essay, “On the Injustice of the Pirating of
Books.” 88 A brief digression on Kant’s theory of copyright is
appropriate here, after which we shall return to Hegel’s treatment,
and to its reformulation and extraordinary extension in
more recent years.
In another ofKant’s essays, What is a book?, he identified the
equivocal use ofthe term “book” as the source ofthe copyright
dispute.
The basic cause of an appearance oflegality in something
that is nevertheless, at the first inspection, such an injuslice—as
book piracy is—lies in this: that the book is, on the
one hand, a corporeal product ofart (opus nzechanicum), which
can be copied (by him, who finds himself in legal possession
of an exemplar of this product)—consequently has a real
right therein; on the other hand, however, a book is also
merely an address of the publisher to the public, which this
publisher, without having the authorization thereto of the
author, may not publicly repeat (praestatio operae)—a personal
right; and now the error consists in this, that the two are
confused with each other. 89
Thus, a “book” is both the corporeal thing I hold when I read
(“my book”), and also the address by one person to another
(the “author’s book”). Kant argued that a book or other literary
product is not simply “a kind ofmerchandise,” but an “exercise
ofhis [the author’s] powers (opera), which he can grant to others
(concedere), but can never alienate.” 90 A copier, or infringer, offers
to the public the thoughts ofanother, the author. That is,
he speaks in the author’s name, which he can properly do only
with permission. The author has given permission, however,
only to his authorized publisher, who is wronged when a book
edition is pirated.
The extension of such a personal right beyond a real right is
shown in the case of the death ofan author prior to publication
ofhis work:
88. See Kant, Von dee Unrechtsmdssigkeit des Bãehernachdnicks, in 2 COPYRIGHTS AND PAT-
ENTS FOR INVENTIONs 580 (R. MacFie ed. 1888).
89. Kant, Was itt an Bash?, in DIE MF.rAPnvsIx DIE SITFEN 405 (F. Palmertrans., W.
Weischedel ed. 1977).
90. Kant, supra note 88, at 582.