Commentary on Fichte's “The Illegality of the Unauthorised ... - uoltj

(2008) 5:1&2 UOLTJ 141
<strong>Commentary</strong> on Fichte 169
“everyone should own the product of their own mind.” This theory about the
nature of intellectual property is a unique contribution to the natural rights theory
of intellectual property. It articulates a modern view that is distinguished from that
of Fichte’s contemporaries. As well, as we saw in the context of mechanical works,
Fichte also considers the recognition of a right to property as protection against
unfair competition. It would be unfair for the creator of a unique mechanical work
not to receive time-limited compensation given the amount of labour he has put
into the creation and the ease of reproducing the work once it is made public.
Here, too, Fichte mirrors Vaver’s concern about unfair competition, which Vaver
expresses in economic terms as follows:
IP rights [encourage] the financing of research and development, and the
distribution of the products of such R & D. Without IP rights, competitors could
freely copy creative work more cheaply because they have not incurred any initial
R & D costs. 127
Fichte’s view of intellectual property is a natural rights view because it
does not see property rights as a way of creating incentives that will maximize
social utility. Instead, it bases property on an idea of right derived from an
essential aspect of human existence. For both Kant and Fichte, this essential
aspect of human existence is freedom. But whereas for Kant the idea of human
freedom is an a priori rational presupposition, 128 for Fichte, right is derived
from the mutual recognition of freedom—it presupposes intersubjectivity. It is
for this reason that in “Proof of the Illegality of the Unauthorised Reprinting of
Books,” Fichte justifies the granting of rights in original works on the basis of a
phenomenological argument about our experience of our own ideas and the
inability of experiencing the ideas of others as they experience them due to
the unique form with which their personality endows them. The essay on the
reproduction of books thus serves to forecast Fichte’s unique intersubjective view
of rights that distinguishes him from his contemporaries.
Finally, Fichte’s view addresses the deficiencies of many contemporary
theoretical justifications for protecting intellectual property rights. First, it deals
at length with the difficulties presented by a utilitarian justification for copyright.
The utilitarians that Fichte addresses are straw men of sorts, since their view that
a person should have a right to be recognized as the author of a work but have no
property rights in the work is not a view held by modern utilitarians. Furthermore,
Fichte’s view would be unconvincing to modern utilitarians: He rejects their claim
that there is no property in a book that can be deduced from principles of right,
arguing that copyright is necessary to recognize the unique personality of the
author that is expressed in the form of the work. But this refutation does not
address the arguments of modern utilitarians who do not accept that morality or
law is derived from any inherent rights that a person has in virtue of being human.
127. Vaver, “The Future of Intellectual Property Law,” supra note 44 at p. 2.
128. As Allen Wood points out, for Kant, “freedom is a necessary presupposition of any use of reason at all.”
This is because “it would be self-refuting to judge that one is not free, and to represent oneself as making
this judgment on the basis of good reasons.” Allen W Wood, “Kant’s Practical Philosophy,” in Karl Ameriks,
ed., The Cambridge Companion to German Idealism (Cambridge University Press, 2000)
57–75 at p. 67. This presupposition permits Kant to ground his moral philosophy on the presupposition of
human freedom.