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

No. ~SJ Are Patents and Copyrights Morally Just!fled? 863
every Individuall in nature, is given an individual! property by
nature, not to be invaded or usurped by any: for every one as
he is himselfe, so he hath a selfe propriety, else could he not be
himselfe. , ~ But this necessity ofproperty for one to “be
oneself” means preeminently self-ownership, which is a principle
in conflict with intellectual property rights.
Utilitarian arguments also have a role to play in understanding
the moral grounds of property rights. That people will be
more productive and will generate wealth that can be enjoyed
by all only when they can reap the rewards of their efforts is
certainly true and has been recognized at least from the time of
Aristotle’s criticism of communism. 163 This is certainly an important
consideration in judging whether private property is
superior or inferior to state ownership. But to tailor legislatively
the abstract rules of the extended order in an effort to
reach predetermined results reveals a serious misunderstanding
ofthe rule of(abstract) law, which aims at no definite result
but which provides the framework within whichjust results can
emerge. In contrast, the kind of utilitarian’~account of law
that has been characterized as “justice-as-order” does not seek
to maximize some particular maximand, but to create an overarching
order within which human beings can realize their various
ends without coming into violent conflict over resources.
As an empirical matter, we have good reason to believe that
when individuals know what their property rights are, they will
be more productive and prosperous than if such rights are uncertain,
The key, therefore, in such a legal system is to avoid
conflicts between rights.’ 65 Intellectual property rights, however,
do create conflicts between rights to self and to tangible
goods. Moreover, it is far from clear that intellectual property
rights increase incentives for innovation, rather than hamper
them. (This last consideration is a matter for empirical investigation
and cannot be decided on a priori grounds.)
The case for “piggy-back” rights is also built around a hard
kernel of truth. Various rights that resemble in some respects
intellectual property rights, such as trade secrets, can indeed be
162. Overion, sn/wa note 75, at 68.
163. See ARIsTomE, sn/wa note 129, at 55-6L
164. I use the term here in abroad enough sense to include David Hume.
165. Of course, people of good faith often do come into conflict, which is why we
have courts of law to adjudicate disputes. To admit the possibility of such conflicts,
however, is a far cry from seeing conflict a~abuilt-in feature of a social order.
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