L'Hydre et l'Académie

    Tom G. Palmer, La moralité du capitalisme + Are Patents and Copyrights morally justified?: The Philosophy of Property Rights and Ideal Objects

    Johnathan R. Razorback

    Messages : 3758
    Date d'inscription : 12/08/2013
    Localisation : France

    Tom G. Palmer, La moralité du capitalisme + Are Patents and Copyrights morally justified?: The Philosophy of Property Rights and Ideal Objects

    Message par Johnathan R. Razorback le Ven 22 Jan - 21:11




    "Most of the arguments discussed in this Article, both for and against intellectual property rights, emanate from staunch defenders of a private property, free market system. This is not surprising, because those who strongly favor liberty and property are apt to see the concepts as intimately connected, and
    are thus more likely to be very concerned with the theory and application of property rights.

    "Intellectual property rights are rights in ideal objects, which are distinguished from the material substrata in which they are instantiated."

    "Many defenses of intellectual property rights are grounded in the natural law right to the fruit of one’s labor. Just as one has a right to the crops one plants, so one has a right to the ideas one generates and the art one produces.
    Another tradition of property rights argument bases itself on the necessity of property for the development of personality. Personality develops itself in its interaction with the world ; without a sphere of property over which we exercise control, for example, moral responsibility is unlikely to develop. Property
    rights, in this tradition, may incorporate an “economic” aspect, but it is fundamentally distinguished from other conceptions of property rights. Rather than looking to moral desert, or to maximization of utility, or to the omnipresence of scarcity, personality-based rights theories begin with a theory of the person. Often harkening back to Kant’s discussions of the nature ofauthorship and publication and to Hegel’s theory of cultural evolution, personality-based rights theory forms the foundation of German and French copyright law.

    "Spooner begins his book, The Law of Intellectual Property: or An Essay on the Right of Authors and Inventors to a Perpetual Property in Their ldeas, by establishing the status of immaterial objects as wealth. “Everything,” writes Spooner, “whether intellectual, moral, or material, however gross, or however subtle; whether tangible or intangible, perceptible or imperceptible, by our physical organs—of which the human mind can take cognizance, and which, either as a means, occasion, or end, can either contribute to, or of itself constitute, the well-being of man, is wealth.” This obviously includes ideas, which are often the objects of economic transactions. Property, as Spooner defines it, is “simply wealth, that is possessed—that has an owner,”. The right of property is the “right of dominion,” the right “which one man has, as against all other men, to the exclusive control, dominion, use, and enjoyment of any particular thing.”

    "The foundations of property, according to Spooner, are the acts of possession and of creation."

    "Having established that ideas are wealth and that all wealth is the product of intellect, Spooner argues analogically that ideas are just as much property as tangible objects. If ideas preexist in nature and are merely discovered (as, for example, scientific principles ornaturally occurring substances), then “he who does discover, or first takes possession of, an idea, thereby becomes its lawful and rightful proprietor; on the same principle that he, who first takes possession ofany material production of nature, thereby makes himself its rightful owner." On the other hand, if ideas are not pre-existing in nature, but are the products of an active intellect, then “the right of property in them belongs to him, whose labor created them.”."

    "To the objection that property rights in ideas cease on publication or communication of an idea to another (“because that other person thereby acquires as complete possession of the idea, as the original proprietor”), Spooner responds that it falsely assumes that “if a man once intrust his property in another man’s keeping, he therebyloses his own right of property in it,”. Possession is not equivalent to the right of use, for “where one man intrusts his property in another man’s possession, the latter has no right whatever to use it, otherwise than as the owner consents that he may use it.”
    Against the objection that some ideas are social in nature, Spooner argues that the role of society in the production of ideas is nil. Ideas are created by individuals, and only individuals have rights to them. As Spooner counters, “Nothing is, by its own essence and nature, more perfectly susceptible of exclusive appropriation, than a thought. It originates in the mind of a single individual. It can leave his mind only in obedience to his will. It dies with him, if he so elect.”."

    "A similar argument, but one that stops short of property rights in perpetuity, is offered by Ayn Rand [in Capitalism: The Unknown Ideal, 1967]. Rand states, “patents and copyrights are the legal implementation ofthe base of all property rights: a man’s right to the product ofhis mind.”. Patents and copyrights are moral rights, and not merely legal rights: “The government does not ‘grant’ a patent or copyright, in the sense of a gift, privilege, or favor; the government merely secures it—[that is], the government certifies the origination of an idea and protects its owner’s exclusive right of use and disposal.”. Like many other advocates of intellectual property rights, Rand sees patents as the highest form of property: “the heart and core of property rights.”."

    "In stopping short of granting to scientists and mathematicians rights to the facts or theories they discover, Rand relies on the same general moral principles as Spooner in her defense ofthe right to intellectual property, but adds a twist. Because ofher focus on the role of “productive work” in human
    happiness, she advocates limits on the temporal duration of intellectual property:
    [Ijntellectual property cannot be consumed. Ifit were held in perpetuity, it would leadto the opposite of the very principle on which it is based: it would lead, not to the earned reward ofachievement, but to the unearned support ofparasitism. It would become a cumulative lien on the production of unborn generations, which would immediately paralyze them.. . - The inheritance ofmaterial property represents a dynamic claim on a static amount ofwealth; the inheritance of intellectual property represents a static claim on a dynamic process of production."

    "Arguments such as Spooner’s and Rand’s encounter a fundamental problem. While they pay homage to the right of self-ownership, they restrict others’ uses of their own bodies in conjunction with resources to which they have full moral and legal rights. Enforcement of a property right in a dance, for example, means that force can be used against another to stop him from taking certain steps with his body; enforcement of a property right in an invention means that force can be used against another to stop him from using his hands in certain ways, In each case, an intellectual property right is a claim ofa right over how another person uses her body. [...]
    To claim a property right over a process is to claim a blanket right to control the actions of others. [...] When one claims to own a dance step, for example, one claims that no one else can so move his body as to perform this dance, and therefore that one has a right of dominion over the bodies of everyone else. Similarly, a copyright over a musical composition means that others cannot use their mouths to blow air in certain sequences and in certain
    ways into musical instruments they own without obtaining the permission of the copyright holder, Thus the real objects the copyright holder controls are the body and instruments of the other musicians. [...] The attempt to generate profit opportunities by legislatively limiting access to certain ideal goods, and therefore to mimic the market processes governing the allocation of tangible goods, contains a fatal contradiction: It violates the rights to tangible goods, the very rights that provide the legal foundations with which markets begin.

    "According to Rand:
    As an objection to the patent laws, some people cite the fact that two inventors may work independently for years on the same invention, but one will beat the other to the patent office by an hour or a day and will acquire an exclusive monopoly, while the loser’s work will be totally wasted. . . . Since the issue is one of commercial rights, the loser in a case of that kind has to accept the fact that in seeking to trade with others he must face the possibility of a competitor winning the race, which is true of all types of competition.

    This idea does not comport well with her earlier claim that intellectual property rights are natural rights that are merely recognized—not granted—by government; in this case a full monopoly is awarded by government to one inventor, while another with a claim equally valid in every respect except for a ten minute lead time at the patent office is denied any right to exploit the invention."

    "Unlike Locke, Hegel does not see man as naturally free, and therefore as having natural, or pre-historic ownership rights in himself. It is only through the historical process ofobjectification and hence self-confrontation that one comes to be free."

    "Kant argued for the protection of literary works in his essay, “On the Injustice of the Pirating of Books.” [...] Kant argued that a book or other literary
    product is not simply “a kind ofmerchandise,” but an “exercise of his [the author’s] powers (opera), which he can grant to others (concedere), but can never alienate.” A copier, or infringer, offers to the public the thoughts ofanother, the author. That is, he speaks in the author’s name, which he can properly do only with permission. The author has given permission, however, only to his authorized publisher, who is wronged when a book
    edition is pirated."

    "Intellectual property rights, however, do not arise from scarcity, but are its cause. As Arnold Plant observes:
    "It is a peculiarity of property rights in patents (and copyrights) that they do not arise out of the scarcity of the objects which become appropriated. They are not a consequence of scarcity. They are the deliberate creation of statute law; and, whereas in general the institution of private property makes
    for the preservation of scarce goods, tending (as we might somewhat loosely say) to lead us ‘to make the most of them,’ property rights in patents and copyright make possible the creation of a scarcity of the products appropriated which could not otherwise be maintained." [cf: A. Plant, The Economic Theory Concerning Patents for Inventions, in Selected economic essays and adresses, 1974]

    Scarcity of this sort being central to the legitimation of property rights, intellectual property rights have no legitimate moral grounding

    «You'll have to think harder than you've ever done before, because you will be on your own -relying on your own judgment and the logic of the arguments you hear or consider, rejecting all authorities and all bromides, and taking nothing on faith. »  
    -Ayn Rand.

      La date/heure actuelle est Mer 23 Aoû - 21:22