Academic journal article Journal of Markets & Morality

Controversy: Would the Absence of Copyright Laws Significantly Affect the Quality and Quantity of Literary Output?

Academic journal article Journal of Markets & Morality

Controversy: Would the Absence of Copyright Laws Significantly Affect the Quality and Quantity of Literary Output?

Article excerpt

"Without that sense of security which property gives, the land would still be uncultivated." (1)

Francois Quesnay

Introduction

Professor Cole argues that copyrights are essentially equivalent to patents in that they confer monopoly privileges that undermine social welfare. However, I find that his argument fails on a number of points. First, like Murray Rothbard, I argue that there is a clear difference between the copyright and the patent. Second, I take issue with Professor Cole's use of the term monopoly as applied to copyrights and the utilitarian morality he implicitly attaches to that inappropriate use. Finally, I reject the idea that we ought to abandon the copyright simply because technological advancements have made it more difficult to defend.

Are Copyrights and Patents All That Different?

Are copyrights and patents essentially the same? In Man, Economy, and State, Murray Rothbard argued persuasively that they are different forms of legal protection. (2) To be sure, Professor Cole is correct to assert that any law that creates scarcity does so artificially and thus is the source of monopoly. The question is, Can that argument be lodged equally against both the copyright and the patent? I would say, no. On the one hand, the patent may be attacked on such grounds because it extends the concept of ownership to natural laws and principles. It is true that the natural order is not a scarce good because it applies equally and perpetually to everyone. How could it be said, therefore, that someone owns a natural principle of the universe? Such principles are the context within which all people live. Any effort to declare ownership to some specific principle would be superficial, as it would arbitrarily restrict the human action of others. Nature exists for everyone, and anyone is free to improve his understanding of it and to act upon that understanding. All persons are free to discover and employ natural principles that anyone else may have already discovered or already employed. No one can claim to own gravity, the fact that water runs downhill, or even the principles of aerodynamics. Thus, I agree with Professor Cole that patents essentially grant monopoly privilege because they confer ownership on things that individuals cannot properly own.

Is a copyright the same sort of claim to ownership as a patent? Are copyrighted items the type of things abundantly available in nature? My contention is that the copyright is of an entirely different nature from the patent. A copyright is meant to protect the owner of a product of scarce resources from theft. While no author can claim ownership of the fact that water runs downhill or any other natural principle of plumbing, for that matter, he may compose an educational handbook that elucidates those principles for a potential reader. In this effort, he employs numerous scarce resources including his time, effort, and personal capital. The result is a scarce product that ought to be protected by law. Though others are free to write their own guide to plumbing, they are not free to reproduce another author's book unless permission has been granted to do so. The copyright exists to protect the product of one's labor. This type of protection is the same as the protection of any property and cannot be separated from other moral obligations. It extends to the scarce labor of the person and the use of scarce resources, and hence ought to be protected. As Bastiat pointed out:

   In the full sense of the word, man is born a proprietor, because he
   is born with wants whose satisfaction is necessary to life, and
   with organs and faculties whose exercise is indispensable to the
   satisfaction of these wants. Faculties are only an extension of the
   person; and property is nothing but an extension of the faculties.
   To separate a man from his faculties is to cause him to die; to
   separate a man from the product of his faculties is likewise to
   cause him to die. … 
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