In the digital age, intellectual property – from proprietary algorithms to music – may be just as valuable as real estate and factories. In a piece for Starting Points Journal entitled, “Are Intellectual Property Rights Moral?,” JWI Affiliated Scholar and intellectual property attorney Gunnar Gundersen examines the moral grounds and judicial precedents concerning property rights, with a focus on intellectual property.
“…throughout our history Americans have found a moral or natural right to property. But this line of thought is being questioned more every day by new generations. This is especially true with respect to intellectual property……A fundamental shift in thinking started after Napster—which allowed people to freely share copyright-protected songs. Then came other ways to share content, like BitTorrent. This has led to serious questioning of the morality or rightness of property rights, especially intellectual-property rights.”
“The Founding generation would not have understood that these intellectual property rights exist only as positive law creations. They understood that all property—and its distribution—depended on intellectual effort and individual initiative… inventions are something peculiar to human nature that individuals use to secure their rights to life and liberty. They are used just like any other property to better secure life and liberty… The objection to intellectual property based on its intangibility collapses quickly when compared to other property rights—which are intangible too. Thus, the grounds for taking intellectual property must rest on some claim of justice—like any other taking…”
“Despite the strength of this reasoning and legal developments, many are skeptical of intellectual-property rights today. They think that they are free to take the fruit of another’s labor—without compensation. That skepticism arises in part because they confuse regulation for creation.”
“Because positive law has governed intellectual property for so long, many citizens have lost touch with its origin in human nature and effort. The extensive registration, application, and statutory schemes governing these rights hide the underlying basis of intellectual property rights in a thicket of laws. But that does not mean the underlying principles are not there…. inventions, creative works, and brands share expressions of the personality of their creators. They are the fruit of intellectual efforts that cannot be credited to anyone else. Enjoying these fruits without compensation or consent reduces their creator into a mere instrumentality….”
“The case is hard for those challenging intellectual property. There is no coherent basis for a right to enjoy the creations of others without the compensation of or consent of their creator….”
Read Mr. Gundersen’s Full Article Here