The idea of intellectual property rights (IRPs) is one that has been held strongly alongside the idea of normal property rights for some time. If one can own the physical things they create, then why should they not be allowed to own an original idea? Why should the fact that something is not tangible mean that it can’t be property?
Many Libertarian thinkers have struggled with the idea of IPRs. Even apparent radicals, such as Ayn Rand, have still stuttered when it comes to explaining how a libertarian society could continue to protect IPRs.
I do not believe that IPRs are justified from a right-libertarian perspective. In this article, I will make the empirical claim that they are unnecessary. In a follow-up I will argue that they are not justified from a moral perspective either.
Many people justify the need for IPRs on an empirical basis. As with usual property, they provide incentives for people to innovate and invest. If people can simply steal any idea you try to make use of, then why exploit those ideas in the first place? This idea has been seemingly accepted by the state and, ta-da, we have copyrights, patents, trademarks and such like.
I do not believe that this argument is awfully compelling when you look at the world we live in today. There are many industries where IPRs are poorly enforced or simply ineffective. In the creative industries, they are regularly ignored, yet there is still significant competition in the market.
Whilst the Internet has made it easier for people to copy and share music freely, this has not lead to the death of the music industry. Similarly, the fact that photos can be easily replicated has not caused photographers to throw away their camera equipment and find something else to do with their time.
Although poor enforcement of IPRs has lowered profit margins in these industries, it has not seemed to damage innovation or creativity, as record labels and others have become even more innovative to avoid losing too much profit.
Supermarkets provide another example. Branded foods and new products are regularly and rapidly replicated by other companies (including the supermarkets themselves). Indeed, the replicas usually undercut the price of the original product. Chocolate hob-nobs are almost £1.50 in my local Tesco. The supermarket sells own-brand chocolate ‘Oaties’ at about half this price.
Has this led to a collapse of the hob-nob brand? No, it has not. Has it meant that people whose passion it is to design an innovative new biscuit have been deterred from entering the market? No, again, that has not happened. The consumer has been able to benefit from lower prices and greater choice, and there is no evidence that this will not be able to continue.
Corporations that have enjoyed strict enforcement of IPRs, such as drug companies, have become majorly distrusted by the public and have enjoyed high profits without necessarily providing a service that deserves such profit.
There is an argument that supernormal profits are required to justify the great expense of researching, developing and producing new medicines. I am, however, sceptical of this argument. Whilst other industries (such as the music business) may have high barriers to entry, they do not enjoy the same protection that IPRs provide. Furthermore, the main perpetrators of this argument are those companies who themselves benefit directly from this kind of government action.
If companies wish to be rewarded for innovation, they need to show that they are the best possible producers of the invention. It is not the role of the government or the taxpayer to pay for big businesses to defend their products.
Branding, and consumer trust of originals over imitations, has been enough to secure enough profits for companies (such as those that unleashed those beautiful shoes known as crocs) to incentivise future investment. This means that whilst the consumer will benefit from lower prices, they will also continue to benefit from the choice that IPR defenders often espouse as the justification for them.
Having not yet tackled the morals behind IPRs, I do not believe there is enough evidence to show that government is required to protect intellectual property to create incentives in the market.