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

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

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

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864 Harvard Journal of Law & Public Policy IVol. 1~$<br />

built on the foundation ofrights to tangible objects. But a trade<br />

secret is not a right against the whole world, as a patent is, but<br />

a right against those who interfere with rights to tangible goods<br />

or who violate legally binding contracts. A monopoly right restricting<br />

others, for example, from independently inventing<br />

<strong>and</strong> building a new contraption cannot rest on a foundation of<br />

contract, for contract presupposes consent <strong>and</strong> the point ofintellectual<br />

property rights is that they bind non-consenting<br />

parties.<br />

Finally, property has been examined as a means ofrealizing<br />

freedom <strong>and</strong> achieving social coordination, “justice-as-order.”<br />

The foundation ofsuch a system of’social coordination is selfownership,<br />

the “node” around which the conventions ofproperty<br />

are constructed. Self-ownership is an “obvious” solution<br />

to coordination games <strong>and</strong> plays an important role in the historical<br />

development of natural law. Such “games” in real life<br />

are played because of the scarcity of resources. If goods were<br />

truly superabundant, there would be no need for property, for<br />

conflicts could not arise. The very nature ofan economic good<br />

involves choice, however, <strong>and</strong> choice implies scarcity. This is<br />

most obviously true of our own bodies, which can be used as<br />

food for others, as objects to gratify the sexual lusts of others,<br />

or in a number of other ways. The problem forwhich self-ownership<br />

provides the answer is how to allocate rights over the<br />

most scarce of scarceresources, one’s own body. This principle<br />

ofself-ownership then, by analogy provides the basis for ownership<br />

of objects that are not parts ofour body.’ 66<br />

The key to all of this is scarcity. Without scarcity, an argument<br />

based either on the realization of freedom or on finding a<br />

solution to coordination games cannot generate a property<br />

right. Tangible goods are clearly scarce in that there are conflicting<br />

uses. It is this scarcity that gives rise to property rights.<br />

Intellectual property rights, however, do not rest on a natural<br />

scarcity of goods, but on an “artificial, self created scarcity.”<br />

That is to say, legislation or legal fiat limits the use of ideal<br />

objects in such a way as to create an artificial scarcity that, it is<br />

hoped, will generate greater revenues for innovators. Property<br />

rights in tangible goods channeled them into their most highly<br />

166. Recall the discussion byJohn Locke regarding the questionofwhen acorns that<br />

aperson haseaten becomehis own: “sohis, [that is], apartofhim, that another can no<br />

longer have any right to it.” J. LOCKE,supra note 42, at 328.

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