Wojciech Gamrot, “The type individuation problem”

Maybe a better, more comprehensible title, would have been “fuck IP”.

Wojciech Gamrot, “The type individuation problem,” Studia Philosophica Wratislaviensia, vol. XVI, fasc. 4 (2021); DOI: https://doi.org/10.19195/1895-8001.16.4.3 [pdf]

Abstract: Lockean justifications of intellectual property postulate the appropriation of immaterial entities, in various contexts called types, patterns, designs, or technologies. It is widely believed that the ownership of such entities gives the owner a right to control their physical embodiments and prohibit imitation. For the prohibition to be meaningful, a condition identifying forbidden objects must be formulated. It must cover not only objects which are identical to some original artifact or its exact, ideal description, but also those which are only similar. This requires systematic answers to three questions: (1) which material structures and which of their subsets should be compared? (2) which of their characteristics should be compared? (3) how to combine these characteristics into a decision rule for token identification? There is no underlying empirical reality that could be independently consulted by individuals in order to incontestably answer these questions. Meanwhile constant evolution in technology and arts requires addressing them repeatedly. Consequently, intellectual property regimes must rely on political institutions incessantly dictating the scope of prohibition, and hence they cannot originate or exist in a prelegal state of nature.

Update: See also Wojciech Gamrot, “On Type Creation and Ownership”

Introduction

The abbreviation: “IP” is commonly recognized in contemporary society. It is usually deciphered as Intellectual Property.1 The meaning of IP may roughly be characterized as the right to prohibit exact or inexact replication of certain objects, patterns or processes, and to prohibit unauthorized sales and use of replicas. However, naming something a “right” and popularizing the usage of such a designation does not automatically constitute a justification. A theory is needed to explain why anyone should think of IP rights as valid. Meanwhile, according to Abraham Bell and Gideon Parchomovsky,2 any coherent and comprehensive theory of property must specify what things are protected. This usually leads to debates on what kinds of objects may be owned.3 However, it is not sufficient to point out to the general class of entities that could be eventually appropriated. A theory has to explain the rules of appropriation. It has to specify which objects may be taken into ownership, and in what circumstances. In this paper, three dimensions of this problem are identified. They are universal and pose a challenge to any IP theory, consequentialist and non-consequentialist. It is further argued, that the difficulty is particularly acute in the context of Lockean (or natural rights) IP theories whose starting point is the prelegal, pre-institutional state of nature. The lack of objectively grounded answer to the stated challenge derails these theories.