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

No. 3] Are Palents and Copyrights Morally justified? 861
to cooperate in the allocation of scarce resources. Intellectual
property rights, however, do not arise from scarcity, but are its
cause. As Arnold Plant observes,
It is a peculiarity of property rights in patents (and copyrights)
that they do not arise out of the scarcity ofthe objects
which become appropriated. They are not a consequence of
scarcity. They are the deliberate creation of statute law; and,
whereas in general the institution of private property makes
for the preservation of scarce goods, tending (as we might
somewhat loosely say) to Leadus ‘to make the most ofthem,’
property rights in patents and copyright make possible the
creation of a scarcity of the products appropriated which
could not otherwise be maintained.’ 59
Scarcity of this sort being central to the legitimation of property
rights, intellectual property rights have no legitimate
moral grounding.
VII. CONCLUSION
Four possible theories of intellectual property rights have
been examined: labor-desert, personality, utility, and “piggybacking”
on rights to tangible property. In each case I have
argued either that the particular arguments cannot be applied
to ideal objects or that the arguments themselves are weak.
This is not to deny that each contains some grain of truth, nor
does this mean that they contribute nothing to our understanding
of the moral foundations ofproperty.
The idea of desert has an important place among our moral
intuitions, although such moral intuitions may have their
proper role in the moral order of the small group such as the
family, and not in the extended order, where abstract rules
prevail.’ 60
159. A. PLAter, The Economic Theory Concerning Patents for Inventions, ~ti SELECTED ECO-
NOMIC EssAYS AND ADDRESSES 36 (1974); see also F. HAYEK, Tna FATAL CONCEIT: THE
ERRORS OF SOCIALISM 6 (1988):
The difference between these [copyrights and patentsl and other kinds of
property rights is this: while ownership of material goods guides the use of
scarce means to their most important uses, in the case of immaterial goods
such as literary productions and technological inventions the ability to produce
them is also limited, yetonce they have come into existence, they can be
indefinitely multiplied and can be made scarce only by law in order to create
an inducement to producesuch ideas. Yet it is not obvious that such forced
scarcity is the most effective way to stimulate the human creative process.
Id. 160. See F. HAYEK, supra note 65, at 11-21. We learn ourmorality, Hayek argues,
within the small group, notably the family, in which face.to.face interaction prevails.