IPKAT GUEST BLOG: THE LEFT AND RIGHT OF IP POLITICS

IPKat’s guest blogger this week is John Cahir. John is a doctoral associate at Queen Mary Intellectual Property Research Institute, where he is doing research into the jurisprudence of copyright. In this blog he had written about what should be considered left-wing and right-wing in intellectual property theory:

Thank you IPKat for inviting me to your blog. My chosen topic for discussion is the status of intellectual property in political/economic theory. In particular, I want to tackle the tricky question of where on the right-left axis of political views one places support for, and opposition to, IP protection. I think this is an important question in view of the increased politicisation of IP law.

Use of right-left wing labels may seem somewhat passé. However they still serve, I believe, a useful lexical function. Here I will focus primarily on their economic connotations. In simple terms, a right wing policy is one that favours economic liberty, i.e. respect for private property, freedom of contract and the efficient operation of the market economy. A left wing policy, on the other hand, is one that favours government intervention in the market place for the purpose of redistributing wealth (normally, though not necessarily, from the rich to the poor). There are, of course, numerous intermediary positions.

As a preliminary aside, there exists an interesting historical coincidence between the use of right-left wing labels and the development of authors’ rights in continental Europe. The political meaning of these labels has its origins in the seating arrangements of the pre-1789 French National Assembly, where the First Estate (nobles) sat on the right wing of the chamber and the Third Estate (revolutionaries) sat on the left. The same assembly, purged of its right wing, also passed the first authors’ rights law in 1791 and hence laid the foundations for one of the most influential modern day approaches to IP.

Notwithstanding the revolutionary origins of authors’ rights, I suspect that most people nowadays would regard strong IP protection as pursuing a distinctly right wing economic agenda. Is IP after all not simply a type of private property? Certainly, the greatest advocates of IP rights in Geneva, Brussels and Washington are large private businesses and their friends in government. One should not, however, confuse partisan support for a particular policy with a consistent political/economic outlook. Public choice theory teaches us that governments are more likely to respond to influence than reason.

We should instead look to the works of political writers to resolve the issue. The great political economists of the 18th and 19th century, being dogmatically opposed to monopolies of any kind, and therefore approached IP with considerable scepticism. Nevertheless Adam Smith, JS Mills, Jeremy Bentham and even Lord Macauley, being adherents of utilitarianism, were prepared to countenance temporary monopolies for the purpose of stimulating creative and inventive activity. They treated IP as a necessary evil, not as a natural right.

In more recent times, IP has been criticised by left wing scholars in the post-structuralist school – they argue that IP is based on the misconception of romantic authorship/inventiveness. However, the most serious charge against IP has come from libertarians - a group that most definitely resides on the right side. One of its best known members, Frederick Hayek, dismissed the idea that patents and copyrights were authentic forms of private property. Libertarian scholars like Tom Palmer, Randy Barnett and Tom Bell have built on his work and have called for the effective abolition of patents and copyrights (but not trade marks).

In many ways theirs is the most persuasive critique that there is of IP. They start with the standard liberal proposition that government should not sanction interference with bodily integrity, justly acquired tangible property or the freedom to contract. IP law violates each of these bedrock principles in non-trivial ways. Copyright law impinges on bodily integrity by restricting an individual’s capacity to sing, read or act in public. It also interferes with the free exercise of property rights by the owners of printing presses, computers and other copying/communication devices. Similarly patent law prevents the owners of industrial plants from using their machinery for productive purposes like the manufacture of drugs. Libertarians do not object to authors and inventors making commercial gain from their creations through shrinkwrap licences or confidentiality agreements: what they oppose is governments imposing blanket restrictions on the peaceable enjoyment by individuals of their bodily and tangible property rights.

When viewed from this perspective IP protection is, in effect, a government-sanctioned transfer of bodily and tangible property rights from dispersed individuals to the beneficiaries of IP protection. The owner of a tangible object prospers economically by using that object for productive ends, whereas the beneficiary of IP rights acquires an economic advantage by being able to prevent other people from using their bodies, minds and tangible property as they see fit. The argument that a property right in ideas and expression is logically equivalent to a property right in tangible objects is therefore mistaken.

In conclusion, I think a strong case can be made that advocates of IP (excluding trade marks) are in fact pursuing a left-leaning political/economic programme and that IP law is a category of corporate/creator welfare. One may of course, depending on one’s political outlook, favour such a policy, but in so doing one should not overlook the encroachment on individual rights and liberties that IP law condones.

Thank you IPKat, I hope my comments provoke further discussion!

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