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

820 HarvardJournal of Law & Public Policy [Vol. 13
ceptions of property rights. Rather than looking to moral desert,
or to maximization of utility, or to the omnipresence of
scarcity, personality-based rights theories begin with a theory
of the person. Often harkening back to Kant’s discussions of
the nature ofauthorship and publication and to Hegel’s theory
ofcultural evolution, personality-based rights theory forms the
foundation of German and French copyright law. Several personality-based
arguments will be considered in this Article. As
we shall see, some of these approaches provide a foundation
for a more expansive form of intellectual property rights than
do moral desert or utilitarian theories, extending, for example,
to artists’ inalienable “personal rights” 6 over their products.
Utilitarian arguments of various sorts can either support or
undercut claims for intellectual property rights. Contingent
matters of fact form an especially important part of the utilitarian
structure. As I have written elsewhere on the utilitarian arguments
for and against intellectual property rights, 7 I will
limit myselfin this Article to a few briefremarks on this subject.
Attempts have also been made to derive intellectual property
rights from the retention of certain tangible property rights.
Thus, ownership rights to tangible objects are constituted by a
bundle of rights that may be alienated or rearranged to suit
contracting parties. In selling or otherwise transferring a piece
of property, like a copy of a book for example, some of these
rights may be reserved, such as the right to make additional
copies. The owner of the material substratum in which an ideal
object is instantiated may reserve the right to use the material
substratum for the purpose of copying the ideal object. This
argument might be labelled the “piggy-back” theory: The intellectual
property right obtains its moral force from its dependence
on a more conventional right of property.
I will take the opportunity in parts II through V of this Article
to present as clearly and fairly as possible each of these four
kinds of property arguments. In turn, I will offer criticisms of
6. Or droit moral, sometimes confusingly translated simply as “moral rights.”
7. See Palmer, intellectual Property Rights: A Non-Posnenan Law and Economics Approach,
12 HAMLINE L. REV. 261 (1989). This essay alsoreviews thehistory ofintellectualproperty.
considers the problem of whether common-law copyright extends after theact of
publication, reevaluates theeconomics of publicgoods and property rights, andexamines
how markets for ideal objects without intellectual property rights function. For
criticism of my position, see Gordon, An Inquirj into the Menisof Copyright: The Challenges
of Consistency, Consent, and Encouragement, 41 STAN. L. REV. 1343 (1989).