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

i’io. 3j Are Patents and Copyrights MorallyJus4fied? 858
The fact that a property right can be conceived as a bundle of
rights to a thing indicates that one right among the many may
be retained by the original producer, in this case, the right to
reproduce the item. Just as a piece of land may be sold, and
certain rights retained (easements, building restrictions, etc.),
so all the rights to a mousetrap could be sold except one, the
right to copy it. This argument is not novel, and was in fact
criticized by Kant and Hegel.’ 38 The separation and retention
of the right to copy from the bundle ofrights that we call property
is problematic. Could one reserve the right, for example,
to remember something? Suppose that I wrote a book and offered
it to you to read, but I had retained one right: the right to
remember it. Would I be justified in taking you to court if I
could prove that you had remembered the name of the lead
character in the book? Could the retention ofthe right to copy
include the right to remember?
Suppose that I had memorized the book and then spoke the
words aloud to another. Would I be violating a retained right
to the tangible object?’ 3 °What if I had heard another person
recite the work and then wrote it down and published it?
Would I be guilty of a violation of the creator’s property rights
ofthe object, although it might face difficultiesin enforcing theclaimagainst someone
who, say, recorded an illegally broadcast song or movie.
138. Kant’s remarks deserve repeating: “Those who regard the publication of a
book as theexercise of the rights of property in respect ofa single copy—it may have
come to the possessor as a [manuscript] of the author, or as a work printed by some
prior publisher—and who yet would, by the reservation of certain rights (whether as
having their origin in the authoror in the publisher in whose favour he has denuded
himselfof them), go on to restrict the exercise of property rights, maintaining the illegality
ofreproduction—willnever attaintheir end. For the rights ofan author’regarding
his own thoughts remain to him notwithstanding the reprint; and as there cannot
be adistinct permission given to the purchaserofa book for, anda limitation of, its use
asproperty, how muchless is a merepresumption sufficient for such a weight ofobligation?”
Kant, Lu/ira note 88, at 581. Hegel argues: “The substanceof an author’s or an
inventor’s right cannot in the first instance be found in the supposition that when he
disposes ofa single copy ofhis work, he arbitrarily makes it acondition that the power
to produce facsimiles as things, a power which thereupon passes into another’s possession,
should not becomethe property of theother but should remainhis own. The first
question is whethersuch a separationbetweenownership ofthe thing andthepower to
produce facsimiles which is given with the thing is compatiblewith the conceptofproperty,
or whether it does not cancel the complete and free ownership on which there
originally depends the option of the single producerof intellectual work to reserve to
himself the power to reproduce, or to part with this power as a thing of value, or to
attach no value to it at all and surrender it together with the single exemplar of his
work.” C.. HEGEL, supra note 78, at 55.
139. It is important to remember that the retained right involved is aright to control
a tangibleobject. No claim is made to a direct right to own theideal object embedded
in thetangible object. The control overthis ideal objectis an indirect consequence ofa
property right overa tangible object.