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

No. ~S] Are Patents and Copyrights MorallyJvst!fied? S49
as necessary to the realization of freedom reduce, then, to the
argument of Wilhelm von Humboldt, which, as noted above,’ 24
is another version of the principal argument of John Locke.
And this liberty-based argument, in its primary implications, is
hostile rather than friendly to intellectual property claims, for
such claims represent liberty-restrictions on others in ways that
tangible property rights do not.
As to the droite de suite, or inalienable resale royalty right, the
economic consequences of this notion havebeen explored elsewhere.’
25 It should suffice to point out that this resale royalty
right benefits some established artists by awarding them
unearned windfall profits, while others suffer by having their
freedom to negotiate over the schedule.ofpayments coercively
abridged. The prospect of having to part with a share of the
appreciation of a work is capitalized into the sale price, meaning
that the money received at the point of sale by the artist will
be less.’ 26 In addition, like inalienable personal rights over art
works, such “rights” reduce the moral agency of artists by restricting
their rights to make contracts with others. The terms
of the contract are fixed by others, and the contracting parties
are constrained from freely transferring their property by
contract.
IV. THE BASIC STRUCTURE OF UTILITARIAN ARGUMENTS AND
INTELLECTUAL PROPERTY RIGHTS
As noted earlier, utilitarian arguments of a certain class can
cut for or against intellectual property rights claims. As dealt
with in much of the economics literature, for example, ‘the utility
gains from increased incentives for innovation must be
weighed against the utility losses incurred from monopolization
of innovations and their diminished diffusion, Some have
argued that the first part of the comparison may be either nega-
matter; as I havenotedelsewhere, however, purelyutilitarian claims on behalfof intellectualproperty
rights are shaky, at best. See Palmer, supra note 7.
124. See supra notes 69-77 and accompanying text.
125. See, e.g., Rottenberg, The Remuneration ofArtists, in FRONTIERS OF ECONOMICS 47-
51 (K. Arrow & S. Honkapohja eds. 1985); Bolch, Damon, & Hinshaw, An Economic
Analysis of the California Art Royalty Statute, 10 C0NN. L. REV. 689 (1978).
126. Those who prefer paymentnow to payment later, such as the many artists who
sell their work “on the street,” are harmed by such a requirement. As Ben W. Bolch
remarks: “Many artists, ‘starving’or not, want their money now, not tomorrow. Otherwise,
they would ‘invest’ in theart by keeping it for themselves.” Bolch, There Is NoJust
Price For Art, N.Y. Times, Nov. 28, 1987, at 23, col. 4.