Intellectual
property is a sensitive subject in the libertarian community. It is
one of the subjects where libertarians just cannot agree what the
libertarian position should be. There are a lot of very vocal
opponents of the concept. While I think they have some valid
arguments, their radical case against all intellectual property
always failed to convince me. That is why I would like to lay down
some arguments of why I continue to defend the basic concept of
intellectual property.

That is not to say
that I am a big fan of current intellectual property legislature. I
am a passionate anarchist, I want the state completely out of the law
production business. However there are forms of intellectual property
where I don’t understand why we should get rid of them.

Before we start
arguing about the pros and contras, let us first start with defining
the main characteristics of intellectual property. Only when we are
clear about what characterises intellectual property we can identify
it when we see it. Intellectual property means the ownership of
information. This can be anything from music, design, literature or
in case of patents even the simple knowledge about something.
Characteristic of ownership is that someone has the exclusive right
so use, distribute or even change these information. As a
consequence, that means nothing else, but that the owner can prohibit
other people the use of his owned information.

If this
characterisation is valid, my first thought is that I cannot see how
you can completely get rid of this concept. There is one form of
intellectual property that has been around for a very long time and
is essentially the basis of contracts. I am talking about what today
would be called a brand, that is the exclusive right of one company
to use a certain name for their products.

Why can we not get
rid of this? Let us take an example. Let us say we get rid of
intellectual property. Then, tomorrow every soft drink producer would
have the right to label their drink coca cola and even use the same
design as the current owner of that brand. How could you make sure in
such a world that if you have a contract with someone to deliver coca
cola to you that that person is delivering the right coca cola? I
don’t see how. Words need to have a clear meaning in order for
contracts to make sense. Interestingly, opponents of intellectual
property are willing to admit that indeed a company delivering the
‘wrong’ type of coca cola would commit a fraud. However, they are
categorically denying that what we are dealing with is intellectual
property. But why is it not? If it is indeed fraud than that would
mean that one company has more right to call their product coca cola.
And if one company has more right to use these information then it
seems to fulfil the characteristics of intellectual property as
described above. As the saying goes, if it looks like a duck and
quacks like a duck, then it is probably a duck.

I may be wrong, but
my impression is that opponents of intellectual property have such a
hard time calling this just that, because once there is a precedent
for intellectual property, the debate would change from if to how
much intellectual property we need. That seems to make them
uncomfortable for two reasons. Firstly, they have identified some
problems with intellectual property. And secondly, because of these
problems there needs to be a limit to intellectual property, but it
is hard to tell exactly where these limits would need to be.

Let us look at some
of the alleged problems. The biggest problem for libertarians seems
to be that intellectual property limits physical property rights.
Since intellectual property always needs a medium, the intellectual
property owner effectively has the right to control to some degree
how people use their physical property. This can go as far as to
control how someone uses his body when singing a song to which I own
the copyright.

This is a problem
because most libertarians seem to really be propertarians. That is
they think that property is liberty or at least that liberty is
defined through property rights. They seems to overlook that property
rights are just a strategy to maximise interpersonal liberty in a world of scarcrity. Interpersonal liberty in my view should be the ability
to do whatever you want as much as that is practically possible
without limiting the ability of others to do the same. If that is
true, then property is only libertarian in so far as it maximises this
liberty. Most physical property seems to do that. However, there can
very well be forms of property that do not serve that function and
should therefore be rejected. David Friedman points to a couple of
problems with propertarianism in his machinery of freedom.

If we were to live
in an ideal world without any scarcity, we would not need property to
maximise interpersonal liberty. Indeed, property in such a world
would limit the freedom of people. That means that if our goal is to
maximise liberty, we should only support forms of property that are
serving that purpose. And I would argue that there are forms of
physical property that do not qualify as libertarian and that there
are forms of intellectual property that do.

But is the
limitation of physical property really a unique feature of
intellectual property? It seems to me that it is a general feature of
property. When I own my body, a lot of Libertarians would say that I
should be able to do with it whatever I want. However, does that mean
I can slam my fist into your face? Of course not. Your face is your
property and I cannot damage your property with mine. My property
rights are always limited by other people’s property rights. Property
as a social concept is therefore always limited by certain
boundaries. So the notion that unless I can do whatever I want with
it, it is not property seems false. The only debate we can have about
property is, how far should this concept go. So yes, intellectual
property limits the physical property rights of other people, as does
every property right. This should not be a criteria to reject it.

The real criteria
is, does it limit the liberty of people unnecessarily. I think in
some cases it does and in some cases it does not. I would argue
whenever intellectual property is needed to create desired content,
it clearly enhances the liberty of people.

Let us take an
example. Currently the last episode of Peter Jackson’s Hobbit trilogy
is coming into the cinemas. The first two episodes where already a
big success. People rushed to watch it in cinemas and bought it on
discs or as a download later. Therefore the third instalment will
predictably be another success. Clearly, the production of this film
makes a lot of people happy and they are willing to spend some money
to see it. The total production costs of all three films are
estimated to be about 561 million dollars. This is not because there
was a lot of wast of money, but producing a film like this really
costs that much money. But with copyright laws in place the film
will bring in more than enough money to compensate for these costs.

However, I cannot
see how this film would have come into existence if it was not for
copyright laws. What would be a possible alternative business model
to bring in that much money? In the dream world of the Hobbit it
would be hard to sneak in any advertisement, like letting him wear
the latest nike shoes or drive a certain Mercedes model.
Advertisement later also does not work. Why would an advertiser pay
to get the rights to advertise in the middle or before the film, if
he could just copy and distribute the film himself.

You might say that
this is a classical case of special interest policy. Why should
people be forced to pay for your film. If you cannot finance it
voluntarily then it should not exist. Of course I agree, people
should not be forced to pay for the film. However, the case is a bit
different here. We know that people are willing to pay for the film
voluntarily. The only thing that copyright laws make sure is that
those revenues go to the producers, so that they can be compensated
for their costs.

Does this
unnecessarily infringe on the liberty of copiers? I cannot see how,
for when the film is not being produced they would not have anything
to copy. So clearly they would not be better off without copyright
laws. In a nutshell, when this film is not being produced no one wins
anything, but a lot of people lose. This is exactly the difference
between this case and a special interest policy case like the famous candlestick makers petition from Bastiat. It is a ‘everyone loses’
situation. How does that maximise liberty? Why should that be a
libertarian position? And if ‘everyone loses’ does not bother you as
a libertarian position then why not oppose property in general? What
justification is there for property if it wasn’t for the fact that
property enhances everyone’s choices in life. Not having property
would also be a ‘everyone loses’ situation. Economic progress would
be impossible and the scarcity would be greatly increased. But at least I
would not be restrained by the boundaries of other people’s property.
In fact there are people calling themselves libertarians who do argue
against all property. To me, this seems silly in a world of scarcity.

Even the person who
is copying wins with this type of copyright protection. After all now
he has something to copy. He may have to pay a small fee, or he may
just do it secretly, but at least he has something to copy, which
clearly enhances his choices in life and therefore his liberty.

On the other hand
there are clearly bad intellectual property rights that should be
rejected from an interpersonal liberty maximising position. A good
example of bad intellectual property rights are rules like the
copyright still lasting long ofter the producer of it has died. This
is clearly not helping to produce more interesting content and
therefore infringes on other people’s liberty unnecessarily.

This also addresses
another common argument against copyright. Which is that information
are not scarce. This is overlooking that intellectual property tries
to protect good, new information. Good intellectual content is very
scarce. If you argue otherwise then tell me where I can find the
information how to cure cancer. If it is not scarce, it should be
easily accessible.

All other arguments
against intellectual property rights that I have come across are
essentially dealing with current wrong legislature of this idea. Yes
there are lots of problems here, reaching from silly rules to using
copyright as a tool for censorship. However, this is simply a general
problem of having a state running a society. We also have this
problem when it comes to physical property where the state provides
very unlibertarian concepts of what that is supposed to be. In any
case I believe, if you cannot protect your rights on a free market,
you probably should not have them. And if it were to turn out that
intellectual property rights are unenforceable in an anarchist
society I am certainly not going to call for the foundation of a
state to do so.

To sum up, I cannot
put myself behind the cause of completely abolishing intellectual
property rights. There definitely seem to be intellectual property
rights that are helping to create interesting new intellectual
content. This content is definitely enriching my choices in life and
therefore my liberty. I do not want to give up on that.