The Myth of Intellectual Property

Part 1: The Basics

“You shall not covet your neighbor’s house; you shall not covet your neighbor’s wife, nor his manservant, nor his maidservant, nor his ox, nor his donkey, nor anything that is your neighbor’s.” (Exodus 20:17 NKJV)

One of the chief pillars of modern technological society is the concept of “intellectual property”. The basic premise is that an idea can in some meaningful sense be the property of some person or persons. All patents and copyrights are defended based on this notion, and it is safe to say that without restrictions on the use of ideas, the industrial revolution would never have occurred, nor would technological change be pursued at the present rate. Patents and copyrights make possible huge profits through innovation. Hence, the idea of “intellectual property” is absolutely critical to the continuance of our modern world.

But is the premise valid? Can it really be that an idea can be owned, bought, sold, stolen — just as if it were tangible, real property? Does Scripture support this modern innovation? Does it make sense in terms of the theology of property? Or is it just another means for the unjust accumulation of wealth and power?

This author contends that the concept of “intellectual property” is only a ruse to justify a kind of monopolism that has no basis in nature or in the Bible. Further, it is logically inconsistent. Finally, it results in a pace of change that is unhealthy and destructive of social order.

Patents and Monopolism

The origin of the modern patent system lies in the practice of absolutist kings, who found that they could reward their favorites without having to give them anything by simply granting them monopolies by means of “letters patent”. Having one’s competition destroyed by royal fiat, the favorite would easily become wealthy in a short time. This vicious abuse of power was not justified by any legal theory beyond the Divine Right of Kings. In England, the practice was outlawed by James I.

The framers of our constitution, desiring to spur technological development, provided for the issuance of patents by the new Federal government. They did not seek to justify this by any theory of “intellectual property”. They did not extend protection to authors. It was merely viewed as an expedient incentive for the development of useful arts and devices. Unlike the “patent Royal”, it was not intended to ruin competition that already existed — it was only to apply to new inventions. But it was to create a temporary monopoly. That is the essence of the law.

The Meaning of “Property” in the Bible

No doubt the intention was good, but what about the law itself? Does it have any counterpart in the law of God? No. If we examine the kinds of property that the Bible recognizes, we find real property (houses and lands) and personal property (cattle, gold, slaves, etc.) But we find no property in clever innovations. The authors of Scripture even had to do without copyrights.

Property in the Common Law

According to the common law, all kinds of property involve the right to use, to prevent others from using, and to dispose of (meaning to sell, convey to one’s heirs, destroy, give away, or throw away) the thing owned. Property is a concept that has meaning for our relation to tangible things. If I own a car, no one else has the right to drive it. No one else can sell it but me. In law, the sea and the atmosphere are not in the category of property. No one can claim the right to prevent others from using or to dispose of these things. God has never given man dominion over the firmament or the sea, though man may use it. He reserves them as his own property. He alone can own them in any meaningful sense.

Originally and ultimately, God owns all that is, by the right of creation. If the potter has authority over the clay, how much more does the creator of the clay (from nothing) have absolute ownership! “All souls are mine”, says the Lord. “The sea is his and he made it…” The cattle on a thousand hills are his. He has never relinquished this absolute authority over anything. Man is given a derivative and relative “property” or ownership in certain things for purposes of stewardship — but he is accountable to God for the use that he makes of that authority.

The origin of property is in the Adamic Benediction of Genesis 1:27-30. Here, Adam and his wife are given “dominion” or the legal and moral right to use the creatures of the earth for their benefit and the glory of God. This Great Charter includes the three basic kinds of animals, fruit trees and green herbs and the land itself. God placed all of these things under man’s lawful control. All of these things are property. All of these things are given into Adam’s hand as a stewardship, to be used for the praise of his Master.

Ideas Cannot be Property

Where in Scripture has God given any man the right to exclude others from the use of an idea? The very nature of an idea is such that it can be utilized by any number of people without anyone being deprived of its use. Unlike property, there is no way to prevent the spontaneous emergence of the same idea at multiple places simultaneously. Each man who conceives an idea in his own mind is entitled to make a profitable use of it. But by what principle does he presume to exclude others who have also thought of it from profiting by its use?

An idea can be “stolen” only in the sense that it can be obtained by violating other property rights. If I have unlawfully entered a man’s house and taken the documents which detail an invention he is about to produce, I have indeed stolen the documents and therefore illegally obtained the idea. But once the idea has been “incarnated” in a product, there is nothing in God’s law to prevent me from purchasing the product and using any design features that are useful in products of my own.

Like the sea and the air, knowledge in general is a common resource provided by our creator for the benefit of all. (The special knowledge of our private affairs is another matter, of course.) The proper stewardship of knowledge is to disseminate it as far and wide as possible. This is the basic principle of public schools and of religious education. “Freely have you received; freely give.” Scientific inquiry was once conducted on this principle, because scientists saw themselves as stewards of God’s gifts for the benefit of humanity. Vast progress was made in useful knowledge in a short time through sharing and the “cross-fertilization” of minds. Now, in this humanistic age, scientists are stewards of the corporation. Research has become completely commercialized, and is conducted in secret for the profits of corporations, rather than for the profit of humanity.

Howard Douglas King, Revised April 15, 2019

Originally published as “The Myth of Intellectual Property”, part 7 of “A Christian Agrarian Critique of Technological Society” in Foundations 1:7, July 9, 2002