The Myth of Intellectual Property: Part 2

The Absurdity of “Intellectual Property”

The idea of “intellectual property” is a recent one — in fact, it is still developing. Not only is it not a Biblical concept — It is a radically humanistic concept. Now, humanism cannot provide a coherent explanation of anything. It can give no adequate basis for morality or ethics. If a man is not accountable to God for the use of property, he can do as he wishes. That is, until someone else challenges his ownership. What then? On what basis can the original possessor defend his claim? He must apply to some entity greater than himself, with the power to adjudicate the dispute. And that is the sovereign state.

The only question for the humanists is, who is the real owner? Obviously, it cannot be God. The state, once only an arbiter of property disputes, is increasingly acting as if it were the ultimate owner of all property — the sovereign state. The state has effectively replaced God as the absolute Lord, and and this means that we are all only stewards of the state.

When it comes to intellectual property, what is asserted is “an exclusive right to profit from an idea”. In the case of real or personal property, it is easy to see that the owner of the property has an exclusive right to profit from the use of that property. But that is because the property belongs to him in an exclusive sense. It is a concrete entity that cannot exist in two places at the same time. And the essence of his property in it is his exclusive right to control it. But if it could not be controlled, how could he claim a right to control it? And if he had no right to control, how could he claim an exclusive right to profit?

It is absurd to speak of “property” in relation to things that cannot by their very nature be limited to one place or controlled by one owner. Ideas can have many “owners”. And each “owner” of an idea is accountable to God for the use he makes of it. But the right to use and the right to profit are inseparable. Once I have an idea in my mind, I have the right to use it and to profit from it, but I have no right to prevent anyone else from doing the same. By contrast, the fundamental idea of property in law (as we have seen) involves exclusivity. “Intellectual property” laws try to make sure that each user pays the “sole owner” of the idea by mere assertion of a right for which there is no basis in fact.

Who is Sovereign, God or the State?

Since only God can bestow His property on anyone, “intellectual property” raises questions of sovereignty. When the state grants a patent, it can only do so if it is (1) recognizing a pre-existing property in the invention or (2) actually conferring that property for the first time. These are the only possible explanations.

But how can there be a pre-existent property in the idea? For it is plainly possible for many people to have the same idea at the same time. In that case, who would own the idea? The first one to conceive it, you say. But the first one to conceive it may not be the first to document it — for any number of reasons. If this is really a moral right, it must belong equally to all of them. But that is impossible — all cannot have an exclusive right. The first to pay the fee and get approval is the one who gets the monopoly. Further, it is not clear why the patent does not extend into the future, in perpetuity — which it must if it is based on pre-existing moral right. Rather, it is limited to a period of time.

The alternative is to say that the state is here actually creating a new property right. This requires us to understand that the state is sovereign, and that it can create property at will. It is no longer the adjudicator of conflicting claims regarding the author of an invention. [In that case, why is it bound to grant the monopoly to the party that documents the idea first? Should it not consult the public good and grant patents only to those who have a demonstrated capability to bring the idea to market? Where do we draw the line, if the state is to have such powers?]

Our conclusion must be that neither premise is true: “Intellectual property” laws do not merely recognize a pre-existing moral right to profit from an idea. But neither can we allow that the state has authority to create property. Only God can do that. Since these are the only two possibilities, “intellectual property” does not exist. This means that all the laws prohibiting the free use of ideas and imposing criminal penalties on those who exercise that right are contrary to reason and biblical ethics, and ought to be abolished.

Originally published as “The Absurdity of Intellectual Property”, part 8 of “A Christian Agrarian Critique of Technological Society” in Foundations 1:8, July 3, 2002

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