Stephan Kinsella, “Letter on Intellectual Property Rights,” IOS Journal 5, no. 2 (June 1995), pp. 12–13. This issue also contains David Kelley, “Response to Kinsella,” IOS Journal 5, no. 2 (June 1995): 13; and Murray I. Franck, “Intellectual and Personality Property,” IOS Journal 5, no. 3 September 1995): 7. Text below.
[Audio available at KOL445 | Audio: Is Intellectual Property Legitimate? Three Essays.]
This was the journal of David Kelley’s Institute for Objectivist Studies, or IOS, which is now The Atlas Society. The letter was a response to Murray I. Franck, “Intellectual Property Rights: Are Intangibles True Property?“, IOS Journal (April 1995): 8–10. Text below. Franck, and later Kelley, argued for IP; I argued against it.
See also a subsequent response from The Atlas Society to my IP criticisms in Marilyn Moore, “Ayn Rand’s ‘Patents and Copyrights,'” AtlasSociety.org (May 28, 2019).
N.b.: some back issues of IOS Journal are archived here.
Murray I. Franck, “Intellectual Property Rights: Are Intangibles True Property?“, IOS Journal (April 1995)
Institute for Objectivist Studies
From the Forum…
Intellectual Property Rights:
Are Intangibles True Property?
by Murray I. Franck
At an IOS Forum in New York City on May 2, 1992, Murray Franck, an attorney, professor, and trustee of the Institute, spoke on “Intellectual Property Rights.” Mr. Franck began with a review of Ayn Rand’s theory of rights and within that context discussed the nature and justification of intellectual property rights. He concluded with a brief review of the status of intellectual property rights today. The following brief excerpt discusses “intangible property” and our right to it.
Intellectual property includes not only patents and copyrights, but also personality property—property concerned with the facts of your life and conscience property—property concerned with the content of your mind. I maintain that we cannot separate tangible property from intangible property, and therefore that intangible property—in all its forms—is subject to the protection of property rights.
In discussing intangible property, please bear in mind that tangible property is corporeal, physical—such as real estate, a pen, the clothing we are wearing—and that intangible property supposedly attaches to no physical entity; it includes, for example, a patent or copyright. The issue, then, is whether intangibles are true property and, if they are, do we have rights in them?…
Rights have no value except as rights to action in the physical world—that is, to attempt physical implementation of expression. And rights cannot be violated except in the physical world—that is, they can be violated only by physical action.
Let’s explore this thesis with civil rights. One civil right is to freedom of expression. It is derived from the right to the contents of your mind, which is ostensibly an intangible. This intangible is property because you created your own thoughts. Let’s test my thesis. Can we separate this ostensibly intangible property from a tangible piece of property? Freedom of the press is the manifestation of freedom of conscience and expression. It takes place in the real world with real printing presses. In practice, it requires private ownership of the physical media that is, property rights in the media. To bring this home: If the government owned all of the media, we would have a regime of continuous censorship, because the government perforce must select the users and then, by force, bar others from using the same physical media.
Your Right To Your Biography
Let’s discuss personality property. Privacy rights protect the rights to knowledge of the facts of your own life—that is, to knowledge of your own biography—against public disclosure without your permission. Publicity rights protect the rights to exploit your own name and likeness commercially—usually in association with a product, such as an actor endorsing a particular brand of soda. Laws against defamation protect rights to your own reputation.
Personality property meets all of the criteria of property and must be protected. First, you created it; you are the author of your own biography by means of your mental activity followed by your actions. You have the right to your own body, and to what it does…. Further, this thought in action creates your reputation, and it is your reputation that makes your biography—the facts of your life—interesting to people, and, conceivably, of economic value. Furthermore, your reputation is what makes your likeness and your caricature valuable for product endorsement. Most important, your reputation is what causes people to want to deal with you.
Further, the protection of personality property is crucial to one’s survival. Each person, as we noted [earlier in the Forum], requires tranquility against constant intrusion that can inhibit access to the subconscious and therefore to certain automated thought processes, and therefore to effective creative and productive thought…. If you constantly have to worry that the most secret parts of your life are subject to revelation, you always will be on guard, and consequently you will lose access to certain forms of thought processes. In addition, the protection of personality property provides money for the means of survival: You can sell your story, and again license your name and likeness. And, if you are defamed, no one will deal with you— and survival can become impossible.
How are personality property rights violated? They are violated through physical means—primarily through the media.
Are rights attendant to personality property rights to action or rights to a result? They are merely rights to action: to create the facts of your life and attempt to make them valuable—i.e., marketable.
Personality property is consistent with the rights of others. No one has the right to use another’s property without his permission. No one has the right to reveal that is, to use the facts of your life, your creation, your property, without permission. The public, in contrast to what a very irresponsible press has argued, does not have a “right to know”—at least, not a right to know everything. It has a right to the disclosure only of what one wishes to reveal, and only of that which is required for life: for example, whether a certain doctor has a communicable disease.
A claimant to personality property is not initiating force by refraining from disclosing the facts of his life, or by refraining from allowing the use of his name and likeness.
The Scope of Privacy
What is the scope of protection of personality rights? Let’s consider privacy. Rights to privacy…are protected to the point of what you voluntarily relinquish, as is the case with all other property. You can license the right to your biography, to your likeness and to your name. You can enter the public eye to varying degrees. You can become part of the public landscape. You can act in a way that does not indicate secretiveness. Your can become a public figure in the political arena and your protection will be narrower.
I posit that any reasonable individual can judge what is private in this respect this is, what is private in another reasonable individual’s life by asking: Does the subject, the individual, wish it kept private and is this privacy necessary for his sense of tranquility? For example, I pass someone’s home and through an open window I overhear a conversation, the contents of which are clearly personal. If I reveal the content of that conversation, it is theft in the same way that it is theft if I take an unattended flower pot from the sill of the same window. If I walk onto your real estate without permission, I am trespassing. I contend that if I take a photograph, from my property, of you on your real estate, I am trespassing by means of technology. If you are in the waiting room of a doctor’s office and you overhear a conversation between the nurse and a patient concerning a test result that is due, I contend that you cannot reveal that information, because by entering that doctor’s office you have entered into an implied contract to keep whatever you hear secret. And, as a lead into the next section, I argue that to publish private facts is tantamount to violating the subject’s copyright in his own biography.
Patents, Copyrights, and Trademarks
Do we have property rights in patents, copyrights, and trademarks? The subject matter of these branches of intellectual property is physical embodiments and physical expressions of ideas. Here are some definitions, which may overlap in practice.
A patent is the right to the exclusive use of utilitarian creations: that is, inventions of a chemical, biological, or physical nature. The standard for receiving a patent is: Is the invention novel, non-obvious to one skilled in the art, useful, and reduced to practice? “Reduced to practice” means that a model has been built or that you constructively reduced the invention to practice by filing a patent application, which requires drawings or formulae.
A copyright is the right to the exclusive control of artistic and literary creations embodied in any tangible form or medium of expression. This includes books, paintings, music, jewelry, and even software. The standard for receiving a copyright is lower than that for receiving a patent. The work must be original to the extent of being a non-trivial distinguishable variation from what existed previously. A copyright does not bar the marketing of an identical embodiment as long as that identical embodiment, that identical expression or substantially similar expression was created independently. For example, and I know that this example is metaphysically impossible: if someone, somehow, somewhere wrote Atlas Shrugged without ever having had access to the works of Ayn Rand, particularly Atlas Shrugged, he could market it. He may not be able to market it under the same title, but he certainly could market it.
Trademarks protect the exclusive right to use your brand name and packaging, and to bar use of an identical or confusingly similar trademark on the same or related goods, if you are the first to use the mark in commerce and if it, too, rises to a certain level of originality.
Protecting Man’s Mind
Is intellectual property actually property?1 And, are rights in it justified? Resoundingly, yes! Man requires property rights to survive physically and spiritually. As we have discussed, if the creator’s rights are not protected, his survival is jeopardized. If another can market his creation, the creator is deprived of the money he otherwise would have earned: that is, deprived of his means of production through trade, and therefore of his survival. In effect, the creator’s personality and the value of his creation to him have been destroyed. If the infringer can market the creator’s property without the creator’s permission, he has substituted his own life for the creator’s life in the marketplace by claiming the results of the creator’s energy, thought, time, and action.
Creation is the criterion of earning, and therefore of ownership. And again, to paraphrase Ayn Rand: Intellectual property rights recognize the paramount role of the mind in the creation of wealth. Intellectual property rights protect the basis of all rights: man’s right to the content and product of his mind.
Neither man nor the product of his mind is a natural resource. All wealth is produced by somebody and owned by somebody, and all production involves both mental effort and the physical effort to translate the mental effort into material form. A physical object, in the absence of an idea of how to exploit it, has no value. Similarly, an idea not followed by physical concretization has no value. But again, ideas come first.
Technology is the translation of theoretical discoveries into practical form; thus, technology is the ultimate and implicit purpose of man’s quest for knowledge. Intellectual property rights protect this quest. They do not protect the metaphysically given; they protect only the manmade. They do not protect scientific discoveries. They protect only their volitionally created expressions and embodiments. Intellectual property rights do not mandate that people ignore scientific discoveries, and practice falsehoods. They do mandate that people practice truth in an original way.
Justice demands that we reward the creator by defending his right to the fruits of his creation. Justice prohibits rewarding the infringer by allowing him to diminish the rewards of the creator….
Stephan Kinsella, “Letter on Intellectual Property Rights,” IOS Journal 5, no. 2 (June 1995), pp. 12-13
Intellectual Property Rights
As an intellectual property law attorney with a great appreciation of Ayn Rand’s philosophy and an interest in property rights theory, I was quite interested to read Murray I. Franck’s article in the April 1995 IOS Journal, “Intellectual Property Rights: Are Intangibles True Property?”
Mr. Franck argues that “intangible” property such as “personality property” and patents, copyrights, and trademarks, is actually property deserving the protection of law. However, there seem to me to be several insurmountable problems in treating intangible entities such as reputations and inventions as “property.”
First, the very reason we need property rights is that we do not live in the Garden of Eden, where everything is in infinite abundance. Rather, some things are by their nature scarce, which means that there can be conflicts between individuals over who gets to consume and control various scarce goods. Because of the possibility of such conflicts and the necessity of humans being able to use physical goods to survive in the world, we must have a system of property rights that solve such conflicts by allocating specific scarce goods to specific individuals. Thus I can own and farm Blackacre, and you can build a house on Greenacre, rather than us eternally warring over these tracts.
However, intangibles such as ideas (e.g., a particular invention which may be patented under today’s laws) are the exact opposite of a scarce good: person B may learn of and use A’s idea without diminishing A’s possession and use of the idea. As Thomas Jefferson wrote, “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights inter at mine. receives light without darkening me.” (It is true that the economic value of A’s idea may diminish if B is able to learn and use it without paying A for this, but property rights protect the integrity of one’s property, not its value, since value is dependent on what others are willing to pay for it. For example, your house may be more valuable on the market if your neighbor has a nice rose garden. but you do not have a right to this value at all, and your neighbor has every right to tear down his rose garden even if it reduces the value of your property.) Thus, ideas do not deserve property protection because they are not scarce goods and are thus simply not property.2
Another problem with intellectual property rights is that at least some of them seem to be inherently arbitrary and vague. This is in contrast to normal property rights to tangible or corporeal objects like land and furniture, which have objective, intersubjectively ascertainable boundaries that can be determined and respected by everybody. A patent protects an invention which is defined in the patent’s “claims.” but these claims are much more vague than are the boundaries of normal property.
There is often no objective answer as to whether an allegedly infringing invention is the “same” as that claimed in the patent.
Further, the scope of things that patent rights apply to seems both arbitrary and inherently vague and subjective. Patents, for example, protect “inventions” but not “abstract ideas.” Thus I can get a patent on a new mousetrap, while, in a recent case (In re Trovato, 1994) the inventor of a new way to calculate a number representing the shortest path between two points, an extremely useful technique, was denied patent protection because this was “merely” a mathematical algorithm. Why the distinction? Are not both equally beneficial to mankind? Do not both “discoveries” require creative intellect? Patent law seems to arbitrarily protect some intellectual creations, but not others.
—N. Stephan Kinsella, West Chester, PA
[Note: This final part of my letter-to-the-editor was cut from the published letter. — SK]
One final problem with intellectual property rights is that at least some of them require legislation to be created i.e., they would never form in a common-law system. A patent, for example, is a monopolistic grant by government to exclude others from using or selling one’s patented invention. It is doubtful that a rights-respecting court-based system would create or recognize such privileges. Bruno Leoni explained in Freedom and the Law why legislation should not be considered the primary way of making law. Legislators are incapable of escaping special-interest influence, and are also hopelessly ignorant of the complex patterns that naturally evolve in society, much as central economic planners cannot efficiently plan socialist societies, as Ludwig von Mises demonstrated in the 1920s.3
Thus legislators’ centrally-issued commands are usually inept and have unintended consequences. It is very unlikely that edicts issued by government employees will have anything to do with individual rights or with what property law ought to be. For this reason common-law type systems should be relied upon as the primary way of discovering legal principles, and legislation should be distrusted and relegated to a strictly secondary status. Intellectual property rights that depend on legislation for their existence are suspect on this ground alone.
David Kelley, “Response to Kinsella,” IOS Journal 5, no. 2 (June 1995), p. 13
As a general thesis about property rights, I think Mr. Kinsella’s point about scarcity misses the essence of the issue. Property rights are required because man needs to support his life by the use of his reason. The primary task in this regard is to create values that satisfy human needs, rather than relying on what we find in nature, as animals do. I therefore agree with Murray Franck’s premise that the essential basis of property rights lies in the phenomenon of creating value.
Scarcity becomes a relevant issue when we consider the use of things in nature, such as land, as inputs to the process of creating value. As a general rule, I would say that two conditions are required in order to appropriate things in nature and make them one’s property: 1) one must put them to some productive use, and 2) that productive use must require exclusive control over them, i.e., the right to exclude others.
Condition (2) holds only when the resource is scarce. But for things that one has created, such as a new product, one’s act of creation is the source of the right, regardless of scarcity.
—David Kelley
Murray I. Franck, “Intellectual and Personality Property,” IOS Journal 5, no. 3 September 1995), p. 7
[From The Roundtable]
Intellectual and Personality Property
I wish to thank Stephen Kinsella for his letter [IOS Journal, June 1995] highlighting several insightful challenges to the proposition that, although they are intangibles, intellectual and personality property are true property, entitled to legal recognition and protection. While my original lecture incorporated full answers to the issues Mr. Kinsella raises, space limitations permit only a summary response here.
- Intellectual and personality property meet the criteria of all property, namely “creation and earning.” Intellectual and personality property are not government granted monopolies any more than is government protection of one’s movie theater against nonpaying trespassers. And, as is the case with all property, trespassers and infringers diminish the value of intellectual and personality property, a value placed upon it by consumers.
- Mr. Kinsella is correct, of course, that no one can legitimately demand that the market deem his property to be of value or, if the market does so deem it, that conditions remain static in order to maintain that value. Intellectual property law is consistent with this position: it protects inventions that leapfrog existing patents, often rendering them worthless in the eyes of consumers.
- The level of creativity required for intellectual property protection is quite high, so that not everything new or beneficial rises to the dignity of property. For example, the idea of the modern super-market is not protected.
- That there are problems in specifying exactly what qualifies as intellectual property protection does not mean that intellectual property is not property. Such problems are not more difficult than those involved in defining rights in the airwaves once seemed or in defining what quantity of smoke from a neighbor’s barbecue constitutes trespass or infringement of one’s right to the quiet enjoyment of his own backyard. If any of these laws is discovered to reflect a technical error, the error can be corrected.
- Just as the common law evolved to recognize “trespass by barbecue smoke,” it would have evolved to recognize property in the airwaves and in intellectual creations. But even if it could be established somehow that the common law would never have recognized intellectual property rights, this would not be an argument against such rights. The common law often requires legislation to correct it (for example, in recognizing the rights of women). Indeed it is a myth that the common law evolves to reflect, and that legislation always is in conflict with, the requirements of human nature. The same minds that employ induction and deduction to decide a particular case, making common law, can employ those methods to legislate universal laws. (See Carl Menger’s Investigations into the Methods of the Social Sciences, 1883, pp. 223–224.)4
- Finally, although property rights help to “ration” scarcity, scarcity is not the basis of property rights. The view that it is, expressed in the third paragraph of Mr. Kinsella’s letter, appears to reverse cause and effect in that it sees rights as a function of society’s needs rather than as inherent in the individual who in turn must live in society.
—Murray I. Franck, New York, NY
- On the problematic framing of this question, which is present in the very title of this article, see IP is Not “Not Property”. —SK [↩]
- Even I sometimes lapse, especially in the past, into the mistake of framing the issue as one of whether ideas “are” or “are not” property. It is more precise to say that information is not the type of thing over which there can be property rights; that all property rights just are rights to the (exclusive, legal) control of an owner. It is not that ideas do not deserve property protection, but that it is impossible. Libertarian and Lockean Creationism: Creation As a Source of Wealth, not Property Rights; Hayek’s “Fund of Experience”; the Distinction Between Scarce Means and Knowledge as Guides to Action; Another way to explain the problem with IP: Resources v. Knowledge; Ownership v. Possession. —SK [↩]
- See, on this, Stephan Kinsella, “Legislation and the Discovery of Law in a Free Society,” in, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023). But see n.48: “if writing this now, I would avoid the term “spontaneous” since it is problematic and intermixed with some of Hayek’s views that I now disagree with on the knowledge problem and how the market functions. See the ‘Introductory Note’ to Part III.C, below.” —SK [↩]
- Note: on these pages in Menger, I do not find support for Franck’s contention that “The same minds that employ induction and deduction to decide a particular case, making common law, can employ those methods to legislate universal laws.” Instead, Menger simply distinguishes positive legislation from an “organic process” like the common law. In other words, there are two sources or types of law: positive legislation, and organic. Writes Menger: “Law, to the extent that it is presented as the result of positive legislation, is a social phenomenon, the explanation of which, as such and not in any particular orientation, leads to special difficulties. Law as the intended result of the will of an organized national community or of its rulers is a phenomenon which does not challenge the sagacity of the scholar unduly either in respect to its general nature or its origin. But the case is different with law wherever it appears not as the result of positive legislation (of the intended common will), but as the result of an ‘organic process.'” All this statement recognizes is that there is both organically developed law, and legislation, and that for the latter, scholars have no especial problem understanding “its general nature or its origin.” This in no way implies, much less shows, that legislation is the only way, or a good way, or even a legitimate way, of “making” law, only that it is common and had been done. —SK [↩]
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