siderations of the importance of incentives and mechanisms for
investment (and of the freedom of anyone with an entrepreneur-
ial idea to bet on it without approval by hierarchies); the political
benefits of separating people’s livelihood from power structures
(the old idea of the independent yeoman class, as modified for
a society in which land has become less important as a factor of
production and ideas more so); and the philosophical concepts
of human agency and personal dignity, combined with the role
of property—intangible as well as tangible—in making them a
reality rather than an abstraction.
As always, it’s in moving from the abstractions to the realities
where the devilment lies. Defining and bounding intellectual
property rights is complicated. The field is subdivided into four
major domains: Copyright governs written, visual, and audio
creations; patents apply to inventions; trademarks deal with
brand protection; and trade secrets cover confidential informa-
tion. Each has special characteristics and is subject to its own
special rules.
Other than trade secrets, these domains differ from tan-
gible property in a crucial way. Because tangible property can
be locked up, nailed down, or fenced in, anyone who wants to
infringe my rights must make physical contact with it. That
makes self-protection the first line of defense, with invocation
of state power as a backup. (Because trade secrets are much
like tangible property in this respect, they tend not to rouse as
much resistance.)
Intangible property, in contrast—to be either useful or lucra-
tive—must be made available publicly and can be easily copied.
Sometimes self-protection is possible by integrating tangible
property with the intellectual product. Newspaper content, for
example, was for decades protected by the expense of printing
and distribution. But usually the holders of intellectual property
must rely upon the legal system to uphold their rights.
It is not surprising that this intimate intertwinement of prop-
erty with state power worries libertarians, as indeed it should. A
government-enforced monopoly based on a patent or copyright
looks a lot like a monopoly granted by a self-seeking officeholder
to his political favorite. The founders of the American republic
had experience with such preferential favoritism—the Boston
Tea Party was more about the East India Company’s monopoly
than the taxes being levied—and the U.S. Constitution gives
Congress the power to hand exclusive rights only to authors
and inventors for limited periods of time. It also specifies that
the purpose is “to promote the Progress of Science and useful
Arts.” No monopolies were to be granted for importing caffein-
ated beverages.
On the whole, though, the system has done a reasonable job
of policing the boundary. Patents are granted only for inven-
tions that meet the criteria laid out in the first known patent
law, from Venice in 1474: novelty, creativity, usefulness, non-AFFIRMATIVE:
I.P. Holders Need the
Legal System To Uphold
Their Rights
JAMES V. DELONG
IF ANY GATHERING of people of libertarian bent becomes dull,
raise the topic “intellectual property.” The result will be an
entertaining escalation in both outrage and decibels. The only
certainty is that no minds will be changed, because the pros
and the cons emphasize different values and the twain show
no signs of meeting.
The case for recognizing a creator’s right to his creations and
his claim on the state to help protect this right rest on the same
foundations as the arguments for protecting tangible property:
Lockean entitlement to the fruits of one’s labors; economic con-
44 OCTOBER 2018 Illustration: Wikimedia
PROPOSITION:
Intellectual
Property Must
Be Protected