Intellectual property

Intellectual property is property in the products of the mind (inventions, writings, designs, and other originated ideas), recognised in law as patents, copyrights, and trademarks. Objectivism regards it not as a special privilege granted by government but as the most direct case of the general principle that a person owns what he produces.

“Patents and copyrights are the legal implementation of the base of all property rights: a man's right to the product of his mind.”
~ Ayn Rand, "Patents and Copyrights", Capitalism: The Unknown Ideal

Why an idea can be owned

The most common objection is that property in physical objects makes sense because two people cannot use the same object at once, whereas any number of people can use the same idea without depriving anyone of it. On that view, property rights solve a problem of scarcity, and ideas are not scarce.

Objectivism rejects the premise. Property rights are not a rationing device for scarce goods; they are the implementation of the right to life, which is the right to act on one's own judgment and to keep the results. See Rights. The material objects a producer owns are themselves the product of thought. Iron ore is not steel, and the difference is somebody's mind. Ownership of the physical form and ownership of the origination are the same principle applied at two points in one process.

“What the patent and copyright laws acknowledge is the paramount role of mental effort in the production of material values; these laws protect the mind's contribution in its purest form: the origination of an idea.”
~ Ayn Rand, "Patents and Copyrights", Capitalism: The Unknown Ideal

This also explains what is actually being protected. A copyright does not stop anyone from thinking a thought, and a patent does not stop anyone from knowing a fact. What is protected is the exclusive right to produce and dispose of the thing the originator brought into existence. A reader who has memorised a novel has not taken anything; a publisher who prints and sells it has taken the author's work and sold it as his own.

The government secures a right, it does not grant a favour

Rand insisted on the distinction, because it is what separates a patent from a licence, a franchise, or a subsidy. Government does not confer intellectual property the way a legislature confers a monopoly on a utility. It certifies the origination of an idea and protects the originator's exclusive right of use and disposal, which is the same function it performs when it records a deed. See Government.

The practical difference is that a right does not depend on whether granting it is thought socially useful. Arguments that patents should be shortened or abolished because innovation would be faster without them are, on this view, arguments of the wrong kind: they ask what serves the public rather than who produced the thing.

Why the term is limited

If intellectual property is property, why does it expire? Rand treated this as a genuine problem rather than an embarrassment, and answered it from the nature of what is owned.

Material property is transferred to heirs who must then maintain it, and it is exhausted by use. An idea is not. Held in perpetuity, an originator's claim would not reward achievement; it would support descendants who originated nothing, and it would accumulate. Every later producer would owe permission to an ever-growing list of estates. Rand's phrase for the result is a cumulative lien on the production of unborn generations. The time limit is therefore not a compromise with the principle but a consequence of it: the right belongs to the originator and to those he chooses during his lifetime, not to an indefinite line of successors with no relation to the work.

What the right length of term should be is a question of law rather than of philosophy, and the forum's recurring version of it is not settled by the principle: whether patents and copyrights should run for the same period, and whether current terms are too long.

What can be patented

A discovery is not an invention. A law of nature, a mathematical relation, or a fact about reality that was always there is not created by the person who identifies it, and identifying it does not give him the power to forbid others to act on the truth. What can be patented is an application: a specific method or device that did not exist until someone made it.

This is the answer to the forum's steel example. Nobody can patent steel, or a chemical element, or the fact that carbon hardens iron. A particular process for producing a particular alloy is patentable, and a person who independently arrives at the same chemistry by a different route is not producing under someone else's patent. The same reasoning is what makes patents on naturally occurring organisms contentious: the question in each case is whether the claimant originated something or merely found it.

Independent invention

The sharpest objection raised on the forum is that patents create a coercive monopoly, because two people may work independently and the one who reaches the patent office first can then stop the other from using his own work. Rand addressed this directly and did not soften it.

“The fact that a man might have been first, does not alter the fact that he wasn't.”
~ Ayn Rand, "Patents and Copyrights", Capitalism: The Unknown Ideal

Her argument is that the objection equates the potential with the actual. Every priority rule in law has this feature; the alternative is not a system in which both inventors are secure but one in which neither is. Whether the loser's position should be improved by a prior-user defence, or by a first-to-invent rather than first-to-file rule, is a question about the design of patent law that Objectivists argue on both sides. What the philosophy rules out is treating the winner's claim as a state-created monopoly of the kind antitrust law was written against.

The dispute with libertarians

Threads here routinely reach the point where someone reports that "the Mises Institute" holds the opposite view. That is accurate. The standard opposing statement is Stephan Kinsella's Against Intellectual Property (Mises Institute, 2008), which argues that property rights exist to resolve conflicts over scarce resources, that ideas are not scarce, and that patents and copyrights therefore create rights in other people's physical property, a restriction on what an owner may do with his own press, his own disc, or his own machine.

The disagreement is not about the value of invention. It is about what property rights are for. On the Objectivist account they implement the right to the product of one's effort; on Kinsella's account they exist only where two uses of a thing genuinely exclude each other. Almost every long IP thread on this forum is a rediscovery of that single fork. Adam Mossoff, a legal scholar who has defended intellectual property rights on Objectivist grounds and written extensively on the history of American patent law, is the usual counterweight cited in these threads.

Common misunderstandings

That copying is theft in the same sense as taking a car. The wrong is not that the owner is deprived of the object; it is that the copier is selling or distributing something he did not originate, against the terms on which the originator released it.
That any use of a copyrighted work requires permission. Reading, quoting, criticising, parodying, and reselling the copy you bought are uses of your own property. What is reserved to the owner is reproduction and distribution.
That intellectual property means ownership of an idea in someone else's head. It is a right over production and disposal, not over anyone's thinking.
That Objectivism therefore endorses current patent and copyright law. It endorses the principle. Software patents, patent-thicket litigation, term extensions, and business-method patents are argued about among Objectivists as questions of implementation.
That the absence of protection in a field disproves the principle. Stand-up comedy and fashion operate largely without it, and both are cited on this forum as counter-examples. That an industry can function without securing a right is not an argument that the right does not exist.

Discussion

Intellectual Property vs. Private Property Rights (the fullest statement of the scarcity objection)
Is intellectual property a coercive monopoly? (independent invention)
Defining Intellectual Property (what is patentable)
IP: Intellectual Property (why the term expires)
Clarification on Intellectual Property Debate (the Objectivist and libertarian positions)
Intellectual Property and Burning CDs (personal copying)

References

Rand, Ayn. "Patents and Copyrights". Capitalism: The Unknown Ideal. New American Library, 1966.
Rand, Ayn. "Man's Rights". The Virtue of Selfishness. New American Library, 1964.
Kinsella, N. Stephan. Against Intellectual Property. Ludwig von Mises Institute, 2008. The principal opposing case, cited here because the forum repeatedly asks what it says.

External links

Patents and Copyrights at the Ayn Rand Lexicon