computers, disks and other equipment. This is all rather curious, since the stated purpose of copyright is not to hide information but rather to stimulate production of new ideas.[8]
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The following examples show that the uncertainty of intellectual property law encourages ambit claims that seem to be somewhat plausible. Some targets of such claims give in for economic reasons.
Ashleigh Brilliant is a “professional epigrammatist.” He creates and copyrights thousands of short sayings, such as “Fundamentally, there may be no basis for anything.” When he finds someone who has “used” one of his epigrams, he contacts them demanding a payment for breach of copyright. Television journalist David Brinkley wrote a book,
Lawyer Robert Kunstadt has proposed that athletes could patent their sporting innovations, such as the “Fosbury flop” invented by high jumper Dick Fosbury. This might make a lot of money for a few stars. It would also cause enormous disputes. Athletes already have a tremendous incentive to innovate if it helps their performance. Patenting of basketball moves or choreography steps would serve mainly to limit the uptake of innovations and would mainly penalise those with fewer resources to pay royalties.
The US National Basketball Association has sued in court for the exclusive right to transmit the scores of games as they are in progress. It had one success but lost on appeal.[10]
A Scottish newspaper,
These examples show that intellectual property has become a means for exerting power in ways quite divorced from its original aim — promoting the creation and use of new ideas.
Critique of standard justifications
Edwin C. Hettinger has provided an insightful critique of the main arguments used to justify intellectual property, so it is worthwhile summarising his analysis.[12] He begins by noting the obvious argument against intellectual property, namely that sharing intellectual objects still allows the original possessor to use them. Therefore, the burden of proof should lie on those who argue for intellectual property.
The first argument for intellectual property is that people are entitled to the results of their labour. Hettinger’s response is that not all the value of intellectual products is due to labour. Nor is the value of intellectual products due to the work of a single labourer, or any small group. Intellectual products are social products.
Suppose you have written an essay or made an invention. Your intellectual work does not exist in a social vacuum. It would not have been possible without lots of earlier work — both intellectual and nonintellectual — by many other people. This includes your teachers and parents. It includes the earlier authors and inventors who provided the foundation for your contribution. It also includes the many people who discussed and used ideas and techniques, at both theoretical and practical levels, and provided a cultural foundation for your contribution. It includes the people who built printing presses, laid telephone cables, built roads and buildings and in many other ways contributed to the “construction” of society. Many other people could be mentioned. The point is that any piece of intellectual work is always built on and is inconceivable without the prior work of numerous people.
Hettinger points out that the earlier contributors to the development of ideas are not present. Today’s contributor therefore cannot validly claim full credit.
Is the market value of a piece of an intellectual product a reasonable indicator of a person’s contribution? Certainly not. As noted by Hettinger and as will be discussed in the next section, markets only work once property rights have been established, so it is circular to argue that the market can be used to measure intellectual contributions. Hettinger summarises this point in this fashion: “The notion that a laborer is naturally entitled as a matter of right to receive the market value of her product is a myth. To what extent individual laborers should be allowed to receive the market value of their products is a question of social policy.”
A related argument is that people have a right to possess and personally use what they develop. Hettinger’s response is that this doesn’t show that they deserve market values, nor that they should have a right to prevent others from using the invention.
A second major argument for intellectual property is that people
A musical genius like Mozart may make enormous contributions to society. But being born with enormous musical talents does not provide a justification for owning rights to musical compositions or performances. Likewise, the labour of developing a toy like Teenage Mutant Ninja Turtles that becomes incredibly popular does not provide a justification for owning rights to all possible uses of turtle symbols.
What about a situation where one person works hard at a task and a second person with equal talent works less hard? Doesn’t the first worker deserve more reward? Perhaps so, but property rights do not provide a suitable mechanism for allocating rewards. The market can give great rewards to the person who successfully claims property rights for a discovery, with little or nothing for the person who just missed out.
A third argument for intellectual property is that private property is a means for promoting privacy and a means for personal autonomy. Hettinger responds that privacy is protected by not revealing information, not by owning it. Trade secrets cannot be defended on the grounds of privacy, because corporations are not individuals. As for personal autonomy, copyrights and patents aren’t required for this.
A fourth argument is that rights in intellectual property are needed to promote the creation of more ideas. The idea is that intellectual property gives financial incentives to produce ideas. Hettinger thinks that this is the only decent argument for intellectual property. He is still somewhat sceptical, though. He notes that the whole argument is built on a contradiction, namely that in order to promote the development of ideas, it is necessary to reduce