Decouple Trade and IP Protection

by Stephan Kinsella on December 4, 2024

My latest article: Stephan Kinsella, “Decouple Trade and IP Protection,” Brownstone Institute (Dec. 4, 2024; perma).

Many of us who support free trade and private property rights tend to look favorably on regional and bilateral treaties that claim to further these goals. There is a vast network of bilateral investment treaties, or BITs, for example, designed to promote foreign direct investment by Western firms into developing nations by limiting the host state’s ability to expropriate the investments.

These BITs aim to strengthen the property rights of international investors in the host state so as to make investment less risky. There are more than 2,500 BITs in force worldwide; the US itself currently has BITs in place with 39 countries. BITs and other measures can benefit both host states and international investors by strengthening local property rights, as I explain in International Investment, Political Risk, and Dispute Resolution.

In addition to investment treaties that concern the property rights of foreign investors in host countries, there is also a global network of bilateral and multilateral free trade agreements ostensibly aimed at promoting trade between nations. Many of us favored so-called free trade agreements like NAFTA even if we would have preferred more radical approaches. Regional, multilateral, and bilateral trade agreements are viewed as incremental improvements even if thousands of pages of regulations could be easily replaced by a couple of sentences or, better, unilateral abolition of import tariffs.

But over time it has become apparent that “free trade” agreements often serve as a pretext for exporting Western intellectual property (IP) law—mainly US-style patent and copyright law—onto the rest of the world. This is what I call IP imperialism. Here’s how it works. First, we are told that intellectual property rights are legitimate, and in fact are part of the reason for the relative success of the industrialized countries in the West. (It’s not. For more on this, see You Can’t Own Ideas: Essays on Intellectual Property.)

{ 2 comments… add one }

Stephan Kinsella December 9, 2024, 6:04 pm
From an email to me and Tucker:

This article is so wrong. i would love to comment directly but don’t see that option. So, as an example: if I were to publish Stephan’s article as my own would he have a problem? Copyright or IP. IP can have huge capital investments. Copyright typically less. Both should be protected.

Mark Dunn

My response:

Unfortunately the Brownstone Institute site does not permit comments. You can comment here.

First, if you want to read up on this matter, I suggest you actually read up on it first before just making assertions or repeating common wisdom. See resources here such as:
- “Intellectual Property and Libertarianism“
- Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), Part IV
- “Oh yeah? How would like it if I copy and publish your book under my name?!”: On IP Hypocrisy and Calling the Smartasses’ Bluffs”
- Russell Madden’s “The Death Throes of Pro-IP Libertarianism”
- A Selection of my Best Articles and Speeches on IP
- ——, You Can’t Own Ideas: Essays on Intellectual Property (Papinian Press, 2023)
- ——, “The Case Against IP: A Concise Guide“
- “The Overwhelming Empirical Case Against Patent and Copyright”
- “Examples of Ways Content Creators Can Profit Without Intellectual Property”
If you have any sincere, non-loaded questions after famiarizing yourself with this material, feel free to ask me. Or I would be happy to have a zoom discussion with you to field questions or explain further.
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Stephan Kinsella December 9, 2024, 8:45 pm
A response to a second comment:

If you read through the material I sent, you will see how I (and Jeff) view IP and why we see that it is completely incompatible with free markets and capitalism and property rights, it impedes and distorts innovation, causes monopolies, restricts free speech and freedom of the press, distorts culture, and threatens Internet freedom. Every assumption you have here is actually mistaken, those implicit in your questions. This is why it’s always best, when approaching a complicated topic that you only know a tiny bit about, to be careful not to take for granted the common wisdom, not to ask loaded questions and to make sure the questions are not tendentious, and if possible never ask compound questions. That is the only way to be sincere and learn and avoid things like relying on common but mistaken assumptions.

As a quick summary of mistaken assumptions you are implicitly relying on here–which would be more clear if you avoided compound questions, if you avoided making assertions without justification or evidence, and if you were careful never to ask a loaded or tendentious question but instead only a sincere actual question not an assertion or statement disguised as a question. but here are some implicit, and wrong, assumptions in your brief questions/assertions:
- that it is the purpose of law to make sure there is “enough innovation” or to “maximize” innovation. It is not. The purpose of law is to do justice by defining and protecting property rights; (see my book, LFFS, Part IV et pass; Intellectual Property Discussion with Mark Skousen)
- that when the state identifies market failure, such as the free market, in the absence of state-granted patent and copyright monopolies that protect producers from competition, the state has the right to intervene in the market to try to fix this market failure
- that the free market, absent IP monopolies granted by the state, produces a sub-optimal level of innovation
- that the state can remedy this market failure by granting monopolies
- that the state’s grant of IP monopolies has in fact stimulated or led to a greater amount of innovation, invention, and artistic works than otherwise (“The Overwhelming Empirical Case Against Patent and Copyright” and “Legal Scholars: Thumbs Down on Patent and Copyright,” in Kinsella, You Can’t Own Ideas)
- that any additional innovation and creative works incentivized by the IP system are worth more to society than those lost or suppressed due to these same laws (“There’s No Such Thing as a Free Patent,” in You Can’t Own Ideas)
- that even if IP law gives rise to a net gain to society in terms of extra innovation, invention, and creative works, that this net gain is greater than other costs of the iP system (“There’s No Such Thing as a Free Patent,” in You Can’t Own Ideas)
If you learn about the sordid history of IP, and the flaws in every single argument given in favor–utilitarian, natural rights, etc.–you will start to see that it’s an abomination, and that every single positive comment or argument about ever given is dishonest or flawed, and defy common sense. It is an evil, destructive system, produced because of a deeply rooted mistake ever since the time of Locke–the labor theory of property as well as the related labor theory of value. (“KOL037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory”)

As I wrote in “The Death Throes of Pro-IP Libertarianism”:

It is obscene to undermine the glorious operation of the market in producing wealth and abundance by imposing artificial scarcity on human knowledge and learning …. Learning, emulation, and information are good. It is good that information can be reproduced, retained, spread, and taught and learned and communicated so easily. Granted, we cannot say that it is bad that the world of physical resources is one of scarcity — this is the way reality is, after all — but it is certainly a challenge, and it makes life a struggle. It is suicidal and foolish to try to hamper one of our most important tools — learning, emulation, knowledge — by imposing scarcity on it. Intellectual property is theft. Intellectual property is statism. Intellectual property is death. Give us intellectual freedom instead!
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