Margaret Jane Radin,

Property and Personhood

34 Stan. L. Rev. 957 (1982)
I. PROPERTY FOR PERSONHOOD: AN INTUITIVE VIEW
Most people possess certain objects they feel are almost part of themselves. These
objects are closely bound up with personhood because they are part of the way we
constitute ourselves as continuing personal entities in the world. They may be as
different as people are different, but some common examples might be a wedding
ring, a portrait, an heirloom, or a house.

One may gauge the strength or significance of someone's relationship with an object
by the kind of pain that would be occasioned by its loss. On this view, an object is
closely related to one's personhood if its loss causes pain that cannot be relieved by
the object's replacement. If so, that particular object is bound up with the holder. For
instance, if a wedding ring is stole from a jeweler, insurance proceeds can reimburse
the jeweler, but if a wedding ring is stolen from a loving wearer, the price of a
replacement will not restore the status quo--perhaps no amount of money can do so.

The opposite of holding an object that has become a part of oneself is holding an
object that is perfectly replaceable with other goods of equal market value. One holds
such an object for purely instrumental reasons. The archetype of such a good is, of
course, money, which is almost always held only to buy other things. A dollar is
worth no more than what one chooses to but with it, and one dollar bill is as good as
another. Other examples are the wedding ring in the hands of the jeweler, the
automobile in the hands of the dealer, the land in the hands of the developer, or the
apartment in the hand of the commercial landlord. I shall call these theoretical
opposites--property that is bound up with a person and property that is held purely
instrumentally--personal property and fungible property respectively.

Why refer these intuitions to personhood at all? It may appear that the category I call
personal property could be described as simply a category of property for personal
autonomy or liberty. Property for personal autonomy or liberty might be a class of
objects or resources necessary to be a person or whose absence would hinder the
autonomy or liberty attributed to a person. Bu there is something more in an
affirmative notion of an individual being bound up with an external "thing." If
autonomy is understood as abstract rationality and responsibility attributed to an
individual, it fails to convey this sense of connection with the external world. Neither
does liberty, if understood in the bare sense of freedom from interference by others
with autonomous choices regarding control of one's external environment.

Once we admit that a person can be bound up with an external "thing" in some
constitutive sense, we can argue that by virtue of this connection the person should be
accorded broad liberty with respect to control over that "thing." But here liberty
follows from property for personhood; personhood is the basic concept, not liberty. Of
course, if liberty is viewed not as freedom from interference, or "negative freedom,"
but rather as some positive will that by acting on the external world is constitutive of
the person, then liberty comes closer to capturing the idea of the self being intimately
bound up with things in the external world.

It intuitively appears that there is such a thing as property for personhood because
people become bound up with "things." But this intuitive view does not compel the
conclusion that property for personhood deserves moral recognition or legal
protection, because arguably there is bad as well as good in being bound up with
external objects. If there is a traditional understanding that a well-developed person
must invest herself to some extent in external objects, there is no less a traditional
understanding that one should not invest oneself in the wrong way or to too great an
extent in external objects. Property is damnation as well as salvation, object-fetishism
as well as moral groundwork.

In this view, the relationship between the shoe fetishist and his shoe will not be
respected like that between the spouse and her wedding ring. At the extreme, anyone
who lives only for material objects is considered not to be a well-developed person,
but rather to be lacking some important attribute of humanity.
II. THE ROLE OF THE CONCEPT OF PERSON
The intuitive view of property for personhood just stated is wholly subjective: self-
identification through objects varies from person to person. But if property for
personhood cannot be viewed as other than arbitrary and subjective, then personal
objects merely represent strong preferences, and to argue for their recognition by the
legal system might collapse to a simple utilitarian preference summing. To avoid this
collapse requires objective criteria differentiating good from bad identification with
objects in order to identify a realm of personal property deserving recognition. The
necessary objective criteria might be sought by appeal to extrinsic moral reality, to
scientific truths of psychology, or to the concept of person itself. Taking the latter
route, this Part approaches the problem of developing a standard for recognizing
claims to personal property by referring to the concept of "person" itself. If that
concept necessarily includes certain features, then those features can determine what
personal property is while still avoiding ethical subjectivism.

A. Theories of the Person

The polymorphous nature of the word "person" inevitably creates problems for a
moral thesis about property built upon notions of personhood. "Person" stems from
the Latin persona, meaning, among other things, a theatrical role. In Roman law,
persona came to mean simply an entity possessing legal rights and duties. Today it
commonly signifies any human being. But for philosophers the nature of a person has
never been reduced to a generally accepted theory. An overview of their continuing
debate suggests four main lines of theory.

Perhaps closest to the persona of Roman law, the first conception is of the person as
rights-holder. For Kant, the person is a free and rational agent whose existence is an
end in itself. I shall call Kantian the view of person focusing on universal abstract
rationality. In this view, personhood has no component of individual human
differences, but rather by definition excludes the tastes, talents, and individual
histories that differentiate one from another.

Another classical view of the person makes its essential attribute self-consciousness
and memory. Locke defines a person as "a thinking intelligent being, that has reason
and reflection, and can consider itself as itself, the same thinking thing in different
times and places." For Locke, memory signifies this continuous self-consciousness.
Locke's theory still holds great appeal for those who puzzle over the mysteries of
personal identity.

These two classical views are compatible with thinking of persons as disembodied
minds or immaterial essences. In contrast is the view that persons are human bodies.
The sophisticated version is that continuous embodiment is a necessary but not
sufficient condition of personhood. To recognize something as a person is, among
other things, to attribute bodily continuity to it. Indeed, Wittgenstein says that the best
picture of the human soul is the human body.

Last, some theorists find these traditional views too pale, and suggest that the
individual's ability to project a continuing life plan into the future is as important as
memory or continuing consciousness. Allied with this is the view that what counts in
recognizing something as a person is a consistent character structure. Persons are what
they are in virtue of their past and future integrated by their character.

Other ways of thinking about persons may not fall within these four rough categories.
The thorough empiricist or metaphysical skeptic may say there is no such "thing" as a
person. To that end, Hume argues that a person is "nothing but a bundle or collection
of different perceptions," and that the feeling of self-identify over time is merely a
persistent illusion. The behavioral psychologist might say that the self is nothing
separate from the body's processes and activity in the environment. In a similarly
empirical and skeptical vein, a positive economist might conceive of a person as
nothing but a bundle or collection of tastes and desires, conventionally recognized as a
unit; but the economist must borrow enough of the Kantian view to attribute
instrumental rationality to this aggregate. Alternatively, non-behavioral psychologists
may think of the person as a self, a subject of mental states. This conception relates
both to the Lockean self-consciousness theory of the person and to the theory of
character structure. Still, the structural postulates of Freudian theory may perhaps be
considered a separate theory of the person.

A communitarian would find all of those concepts of personhood wrongheaded
because they all derive from the individualistic worldview that flowered in western
society with the industrial revolution. In a society in which the only human entity
recognized in social intercourse is some aggregate like the family or clan, there could
not be such intense philosophical attention to the biological individual and its
ontological, psychological, moral and political status. In view of the individualist
roots of those theories of the person, it comes as no surprise that thinkers who wish to
progress from an individualist to a communitarian world-view are impatient with
them. Communitarians see the myth of the self-contained "man" in a state of nature as
politically misleading and dangerous. Persons are embedded in language, history, and
culture, which are social creations; there can be no such thing as a person without
society.

For the sake of simplicity, I shall initially confine my inquiry to the types of the
person posited by the more traditional, individual-oriented theories. But the
communitarian critique reminds us that the idea of the person in the abstract should
not be pushed beyond its usefulness. In what follows I shall on occasion attempt to
pay attention to the role of groups both as constituted by persons and as constitutive of
persons.

B. Property and Theories of the Person

Bypassing for the moment Kantian rationality and Lockean memory, let us begin with
the person conceived as bodily continuity. Locke says that "every Man has a Property
in his own Person," from which it immediately follows that "[t]he Labour of his Body,
and the Work of his hands . . . are properly his." Though, as we have seen, Locke
elsewhere considers the person as reflective consciousness and memory, he may well
mean here that one literally owns one's limbs and hence must own their product. If
not, perhaps property in one's person should be understood to mean simply that an
individual has an entitlement to be a person or to be treated as a person. This would
probably include the right to self-preservation on which Locke bases the right to
appropriate.

If it makes sense to say that one owns one's body, then, on the embodiment theory of
personhood, the body is quintessentially personal property because it is literally
constitutive of one's personhood. If the body is property, then objectively it is property
for personhood. This line of thinking leads to a property theory for the tort of assault
and battery: Interference with my body is interference with my personal property.
Certain external things, for example, the shirt off my back, may also be considered
personal property if they are closely enough connected with the body.

The idea of property in one's body presents some interesting paradoxes. In some
cases, bodily parts can become fungible commodities, just as other personal property
can become fungible with a change in its relationship with the owner: Blood can be
withdrawn and used in a transfusion; hair can be cut off and used by a wigmaker;
organs can be transplanted. On the other hand, bodily parts may be too "personal" to
be property at all. We have an intuition that property necessarily refers to something
in the outside world, separate from oneself. Though the general idea of property for
personhood means that the boundary between person and thing cannot be a bright line,
still the idea of property seems to require some perceptible boundary, at least insofar
as property requires the notion of thing, and the notion of thing requires separation
from self. This intuition makes it seem appropriate to call parts of the body property
only after they have been removed from the system.

Another paradox is whether replacing any of my body parts with fungible plastic
makes me a different person, and whether the plastic parts once inserted should be
considered personal property or something else. The plastic parts question represents
the converse of the problem concerning the sale of natural organs. The natural organ
becomes fungible property when removed from the body, but remains purely
personal, thus seemingly not property, while it is still inside the body. Conversely,
plastic parts are fungible when sold to the hospital, but once inserted they are no
longer fungible, and should be considered as the natural organs they replace, hence
perhaps no longer property at all.

Next, let us consider the person as individual rationality, the Kantian person. If
persons are bare abstract rational agents, there is no necessary connection between
persons and property. Therefore, Kantian rationality cannot yield an objective theory
of personal property. One might introduce external objects to a population of Kantian
persons in the state of nature or in Rawls's original position to see how they divide
things among themselves (and so it might be hard to think of justice among these
persons without property), but object relationships are still not a necessary corollary to
the concept of personhood in this view.

In Locke's view of persons as continuing self-consciousness characterized by
memory, the external world may enter the concept of person. Memory is made of
relationships with other people and the world of objects. Much of the property we
unhesitatingly consider personal--for example, family albums, diaries, photographs,
heirlooms, and the home--is connected with memory and the continuity of self
through memory. But the pure Lockean conception of personhood does not
necessarily imply that object relations (and the expected continuity of those relations
that property gives) are essential to the constitution of persons, because that
conception is disembodied enough not to stress our differentiation from one another.
It is possible to hold the Lockean conception and still believe that memory is part of
an immaterial essence of the person that has no inherent connection to the material
world. But in a neo-Lockean view rejecting such dualism and making self-
differentiation important, it seems object relations are necessary and central to self-
constitution.

Finally, let us consider the view that what is important in personhood is a continuing
character structure encompassing future projects or plans, as well as past events and
feelings. The general idea of expressing one's character through property is quite
familiar. It is frequently remarked that dogs resemble their masters; the attributes of
many material goods, such as cars and clothes, can proclaim character traits of their
owners. Of course, many would say that becoming too enthralled with property takes
away time and energy needed to develop other faculties constitutive of personhood.
But, for example, if you express your generosity by giving away fruits that grow in
your orchard, then if the orchard ceases to be your property, you are no longer able to
express your character. This at least suggests that property may have an important
relationship to certain character traits that partly constitute a person.

This view of personhood also gives us insight into why protecting people's
"expectations" of continuing control over objects seems so important. If an object you
now control is bound up in your future plans or in your anticipation of your future
self, and it is partly these plans for your own continuity that make you a person, then
your personhood depends on the realization of these expectations. This turn to
expectations might seem to send property theory back toward Bentham, who declared
that "the idea of property consists in an established expectation." But this justification
for honoring expectations is far from Benthamite, because it applies only to personal
property. In order to conclude that an object figuring into someone's expectations is
personal, we must conclude both that the person is bound up with the object to a great
enough extent, and that the relationship belongs to the class of "good" rather than
"bad" object-relations. Hence we are forced to face the problem of fetishism, or "bad"
object-relations.

C. The Problem of Fetishism

We must construct sufficiently objective criteria to identify close object relations that
should be excluded from recognition as personal property because the particular
nature of the relationship works to hinder rather than to support healthy self-
constitution. A key to distinguishing these cases is "healthy." We can tell the
difference between personal property and fetishism the same way we can tell the
difference between a healthy person and a sick person, or between a sane person and
an insane person. In fact, the concepts of sanity and personhood are intertwined: At
some point we question whether the insane person is a person at all. Using the word
"we" here, however, implies that a consensus exists and can be discerned. Because I
seek a source of objective judgments about property for personhood, but do not wish
to rely on natural law or simple moral realism, consensus must be a sufficient source
of objective moral criteria--and I believe it can be, sometimes, without destroying the
meaning of objectivity. In the context of property for personhood, then, a "thing" that
someone claims to be bound up with nevertheless should not be treated as personal
vis-a-vis other people's claimed rights and interests when there is an objective moral
consensus that to be bound up with that category of "thing" is inconsistent with
personhood or healthy self-constitution.

Judgments of insanity or fetishism are both made on the basis of the minimum indicia
it takes to recognize an individual as one of us. There does not seem to be the same
reason to restrain a private fetishist as there would be to restrain an insane person
prone to violence against others. But the restraint of denying the fetishist's property
special recognition as personal is less severe than that imposed on someone deemed
violently insane. To refuse on moral grounds to call fetishist property personal is not
to refuse to call it property at all. The immediate consequence of denying personal
status to something is merely to treat that thing as fungible property, and hence to
deny only those claims that might rely on a preferred status of personal property.

A broader aspect of the problem of fetishism is suggested by Marx's "fetishism of
commodities." Marx attributed power in a market society to the commodities that
form the market. He believed that people become subordinate in their relations to
these commodities. In other words, under capitalism property itself is anti-
personhood.

Even if one does not accept that all capitalist market relations with objects destroy
personhood, it is probably true that most people view the caricature capitalist with
distaste. Most people might consider her lacking in some essential attribute of
personhood, such as the capacity to respect other people or the environment. If there is
some moral cut-off point, beyond which one is attached too much or in the wrong way
to property, the extent to which someone may emulate the caricature capitalist and
still claim property for personhood is not clear, but is not unlimited. Although the
caricature capitalist cannot express her nature without control over a vast quantity of
things and other people, her need for this control to constitute herself the complete
capitalist could not objectively be recognized as personal property because at some
point there is an objective moral consensus that such control is destroying personhood
rather than fostering it.
CHRISTENDOM COLLEGE
A CRITIQUE OF INTELLECTUAL PROPERTY RIGHTS
A THESIS SUBMITTED TO
DR. STEVEN SNYDER
IN CANDIDACY FOR THE DEGREE OF
BACHELOR OF ARTS
DEPARTMENT OF PHILOSOPHY
BY
DANE JOSEPH WEBER
FRONT ROYAL, VIRGINIA
DECEMBER, 2002
To the downfall of the whole Enlightenment-Protestant-Renaissance project
CONTENTS
1. INTRODUCTION
2. Chapter
1. OVERVIEW AND CRITIQUE OF THE UTILITARIAN ARGUMENT
1. The Utilitarian Defense of Intellectual Property
2. The Failure of Utilitarianism
2. OVERVIEW AND CRITIQUE OF THE NATURAL RIGHTS ARGUMENT
1. Lockean Natural Rights
2. Hegelian Natural Rights
3. The Failure of Natural Rights Theories
3. A CRITIQUE OF THE NOTION OF INTELLECTUAL PROPERTY
1. Ownership and Limitation
2. Intellectual Works and Limitation
3. The Basis for Copyrights and Patents
3. CONCLUSION
4. BIBLIOGRAPHY
INTRODUCTION
Men who would decry any theft of physical property and would never permit
themselves to steal will violate copyrights and patents with nary a qualm. This strange
difference in behavior toward these two things, both of which are called "property,"
indicates a dichotomy in the minds of many with regard to the nature of physical and
intellectual works. Even the law treats them in decidedly different ways: physical
property rights are indefinite, while "intellectual property" rights are given time limits.
Thus, in order to discern the validity and force of copyrights and patents, it is not
enough simply to state that intellectual works are owned like property. The
fundamental bases for these laws must be discovered in order to understand them.
The notion of intellectual works as property itself indicates a certain conception
of the relationship between man and his intellectual works. If an intellectual work is
the property of a man in the same way that physical works are his property, then
certain conclusions follow from this premise. However, copyrights and patents in
themselves do not imply this ownership of intellectual works. They are rights granted
by the state, and as such do not indicate ownership of the thing to which the rights
pertain. This is especially clear when considering the rights granted to those in
authority; an example is the right to search a house granted by means of a search
warrant. The search warrant does not indicate that the police officer owns either the
house he is searching or the owner of the house.
While it is from the copyright and patent laws that theories of intellectual
property stem, these laws themselves have been based upon utilitarian theories, at
least in the United States. A utilitarian defense of copyrights and patents does not
include the notion of intellectual property. It simply requires the weighing of relative
goods and the final determination that granting copyrights and patents brings about
more good than would exist without them. This utilitarian defense, however, is largely
unsatisfactory. Even on its own grounds, a utilitarian comparison is not conclusive.
While some have calculated that copyrights and patents have a beneficial effect
overall, others with equal authority claim that they have a detrimental effect overall.
They both use conjecture and estimation in order to devise their figures, and they are
both able to present hypothetical cases to support their arguments. This utilitarian
method of comparing goods becomes incoherent because it can only compare goods
that are qualitatively equal. Even when comparing goods in a simply quantitative
manner, utilitarianism breaks down, especially when comparing the loss or gain of
many to the respective gain or loss of a few. In order to avoid these difficulties, a
different justification for copyrights and patents is necessary.
The notion of "intellectual property" allows for a defense of copyrights and
patents based in rights. By extending ownership to intellectual works abstracted from
material existence, property rights can account for the powers granted by copyrights
and patents. These natural property rights over intellectual works are problematic,
however, when considered in light of natural law.
1
Because human law is only
legitimate insofar as it is based upon natural law,
2
a natural law basis must be found
for copyrights and patents. Without a natural law basis, they are not even laws.
3

Copyrights and patents are not the only laws which are considered under the
category of "intellectual property" laws. They are, however, the only ones that do not
derive directly from natural law. The realm of "intellectual property" laws generally
comprises "at least copyrights, trademarks, patents, and trade secrets."
4
Many will
also consider laws against plagiarism and forgery to be included with these. A
trademark is "a legally protectable name, word, symbol, design, or combination which
designates the manufacturer of a product or service."
5
Trademarks are violated when
one who does not hold the trademark uses it to advertise his product. This is clearly an
offense against truth because the violator is claiming that his good or service
originates in a way contrary to fact. Plagiarism and forgery are very similar. These
crimes involve claiming authorship of that which was authored by another and
claiming a source other than the true source of important or valuable items
respectively. Thus trademark violation, plagiarism, and forgery are all offenses
against truth. Trade secrets are protected by contracts and property laws preventing
trespass. A trade secret is simply information, such as the Coca-Cola recipe, which is
not publicized and all who are allowed to know said information are bound by
contractual agreement not to disseminate the information. One who shares the
privileged information has broken a contract, and one who spies in some way in order
to learn the secret has trespassed. Thus trade secrets as well have a natural law basis
which in no way needs the notion of "intellectual property."
6

Copyrights and patents do not have immediately apparent natural law bases.
Copyrights and patents govern artistic works and inventions respectively. They
prevent men from reproducing a protected work without the permission of the holder
of the copyright or patent. Neither copyright nor patent violations necessitate a claim
contrary to truth, nor do they involve obtaining information illegally, since they both
use publicized information. Because the simple, natural-law bases for the other laws
governing intellectual works do not apply to copyrights and patents, other bases must
be found in order to defend these rights.
The bases for copyrights and patents cannot be found explicitly in Thomistic
writings. St. Thomas Aquinas, the great doctor of the natural law, could not deal with
either copyrights or patents because he died in 1274, 200 years before the first patent,
which preceded the first copyright, was granted in 1474.
7
Thus he does not have any
articles or treatises concerning such laws. Copyrights and patents have only been
granted by governments within the last half millenium. Even so, the very use of the
term "intellectual property" is more recent:
The libertarian writer Lysander Spooner used the phrase "intellectual property"
in the 1850s, and may have been the first to do so. Its widespread use is recent,
however. It first appeared as a heading in the Reader's Guide to Periodical
Literature in 1985, and only in 1993 did the relevant subcommittee of Congress
change its name to Intellectual Property and Judicial Administration.
8

If intellectual works can be owned in the way that physical works can, then
there will be little difficulty in providing an adequate defense of copyrights and
patents because St. Thomas gives a strong, natural-law defense of private
property.
9
Most arguments that defend the notion of "intellectual property" are not
based in St. Thomas's explanation of private property, however, but rather in the
explanations given by more recent philosophers.
Philosophers who have actually dealt with the matter of copyrights and patents
have written after the advent of these legal rights. Thus men such as Locke, Hume,
Mill, and Hegel have more to say on the matter than does St. Thomas. These men
have laid the foundations used in most modern defenses of copyrights and patents.
While not all arguments in defense of copyrights and patents are based upon the
notion of intellectual works as property, those that do base their defense upon the
property argument have a fairly direct connection between "intellectual property" and
the protection of certain rights over this property.
The arguments purporting that intellectual works abstracted from matter can be
held as property derive in large part from modern philosophers who deal with
property, such as Locke and Hegel. These men lay a certain foundation for property
which is easily extended to intellectual works. Locke bases his defense of property in
man's labor and his "ownership" of his own labor. This theory of the basis of property
is easily extended to intellectual works, which do involve labor to be created. Hegel
bases his defense of property in man's personality and his "right" to develop this
personality in the physical world. If personality is fundamental to property, then
something as personal as artistic expression would certainly seem to be as protected as
private property.
There are certain deep problems with these theories, especially insofar as they
relate to "intellectual property." These theories do not provide a cogent method for
discerning who the owner is for a product where one man owned the raw material and
another man owns the idea now expressed in the product. These theories also hold that
the rights of an owner over his property are next to absolute. The control that an artist
or inventor has over the property of others is a limitation that does not seem to fit with
the treatment given property rights.
These modern arguments from natural rights either treat "intellectual property"
rights as the foundation for physical property rights, which seems a little absurd given
the long-standing recognition of private property and the relatively recent recognition
of "intellectual property," or treat these rights as completely compatible with each
other, which they are not. There is a certain tension between physical property rights
and "intellectual property" rights in these theories which is not resolved and is open
for attack.
The notion of "intellectual property" allows for a defense of copyrights and
patents where utilitarian arguments fall short. Yet it does not form a coherent whole
with normal property rights. Thus after a critique of both prevalent modern theories,
the utilitarian and the natural rights theories, an attempt must be made to explain the
relationship of intellectual works to their originators. This explanation will have to
take into consideration the very natures of the things involved and the basis for
property itself.
CHAPTER 1
OVERVIEW AND CRITIQUE OF THE UTILITARIAN ARGUMENT
The utilitarian defense of copyrights and patents sets out to prove not only that
innovation and creation are good and necessary for the "general happiness," but also
that they will occur at an unacceptably slow rate without the monetary incentive
derived from copyrights and patents. Utilitarians make no claim that inventors or
artists have natural rights regarding the reproduction of their works. Their defense of
copyrights and patents is limited to the benefit these positive law rights have for the
whole of society.
The Utilitarian Defense of Intellectual Property
In its formulation by John Stuart Mill (d. 1873), utilitarianism holds that a law
is justified when it promotes the "general happiness." Mill's understanding of
happiness is simply "pleasure, and freedom from pain,"
10
and this "general happiness"
is "understood as the sum or perhaps average of the enlightened self-interests."
11
A
good or just law for Mill's utilitarianism is thus one where its enforcement brings
about more pleasure than would exist without it. The pleasure and pain considered
here is not simply physical, but intellectual as well.
Copyrights and patents are designed to promote the "general happiness" by
allowing the inventor or artist to profit from his work. These profits give both a
monetary incentive to invent and create and a possible means of support to those who
are dedicated to invention or creation. This is the rationale given in theConstitution of
the United States which justifies copyrights and patents as being enacted "to promote
the progress of science and useful arts."
12
The copyright and patent system allows for
the existence of a professional artist or inventor without the patronage of a ruler,
wealthy merchant, or even a modern corporation.
In defense of patents, utilitarians must first hold that inventions, by and large,
benefit society. While there are arguments to the effect that the use of certain
inventions is harmful,
13
utilitarian defenders of patents argue that there is quite clearly
an increase of pleasure and a decrease of pain in society as a whole because of
advances in technology. Advances in medical technology especially have brought
about this benefit to the general happiness. Other areas of technological advance have
aided in their own ways, making for a generally healthier and safer
society.
14
Therefore a law that promotes technological advancement benefits society,
and would thus be justified for utilitarians.
In the same way, art is defended as benefitting society. Art does not relieve
physical pain or prevent physical injury as some inventions do, but it does directly
provide intellectual pleasure. Because Mill's understanding of "happiness" is based on
"complex states of experience,"
15
Mill's philosophy is equipped to hold that art
promotes happiness.
Given that art and invention promote the general happiness, the relative merits
and demerits of any copyright or patent laws must still be considered. There would
exist a certain level of invention and artistic creation without any monetary incentive.
Amateur artists and inventive hobbyists do not need any sort of monetary incentive.
Furthermore, even without copyrights or patents, certain monetary incentives for
invention and creation still exist: men will invent to make their tasks easier and artists
will perform live or sell original works for money. Therefore, the scope of the
incentive given by the laws in question is limited; they are not the only source of
incentive for invention or artistic creation. On the other hand, there are also certain
costs involved with these laws. Most basically, there is the cost of enforcing the laws,
as well as certain other costs associated with the limitations these laws place on the
use of knowledge. Thus a complex calculus must be employed in order to determine
whether these laws are good according to the utilitarian method.
The benefit of copyright and patent laws is thus the creation of a certain
monetary incentive for invention and artistic creation. This monetary incentive has
been distinguished above into two levels of benefit: the first level is the simple
monetary reward, the second is the provision of a livelihood. The level of benefit that
an artist or inventor receives is based upon both the quantity of work he produces and
the value attributed to the work by those willing to pay for it. Among those who do
not rely upon art or invention for their livelihood, copyrights and patents only provide
the kind of incentive that contests and the like provide; that is, they provide a
monetary prize for works considered worthy of it by the judges, in this case
consumers of protected property. Thus for this group, copyrights and patents provide a
government-enforced, publicly funded art or invention contest.
The benefit to those who do rely upon copyrights and patents for their
livelihood is the ability to invent or create art without the distraction of another
occupation. Renaissance artists, such as Michelangelo Buonarroti (d. 1564), and full-
time inventors, such as Thomas Edison (d. 1931), could not have contributed as much
as they did to society if they had needed to rely upon other occupations. The example
of Michelangelo, however, who lived before copyrights protected painting or
sculpture and worked under the patronage of the wealthy, does indicate that
copyrights are not the only method by which an artist may dedicate his life to art. This
further indicates the limitation of the benefit of copyrights and presumably patents as
well.
The Failure of Utilitarianism
The benefit of these monetary incentives are real, but then so are the costs.
While copyrights are free and automatic now, patents require application fees and
usually legal fees to obtain. Furthermore, the government must provide an
organization to catalog and file all patents. In order to enforce a copyright or patent,
lawyers and court fees must be paid. These are the most basic costs. Additional costs
include payment for additional licences where no additional good or service is
provided, the restriction of the use of beneficial information or techniques, and an
emphasis on marketable art and invention at the expense of more beneficial art and
invention.
Assigning each of these costs and benefits a value which can be compared to
every other cost or benefit is, if not impossible, at least arbitrary. This is not a simple
calculation involving comprehensible quantities. Within the utilitarian school there are
many theories about what the costs and benefits of copyrights and patents are.
16
There
could be many costs as well as benefits as yet undiscovered which might tip the scales
one way or the other, this is especially true with regard to scientific inventions that
might have undesirable consequences which emerge slowly. Thus one serious
problem with the utility comparison is that the variables are not only vague and hard
to define, but one can never be certain that every variable is being considered. This
reduces the utilitarian defense of copyrights and patents to the level of a good guess
that the laws will do more good than harm.
The utilitarian defense will fall woefully short in the eyes of one who holds that
man has a natural right to his property. For those who hold to natural property rights,
copyrights and patents are "force" exerted over an individual's property,
17
a limitation
enforced by the government which causes the owner pain. The laws restrict the use of
one's own property at the penalty of hefty fines or imprisonment. Restricting the
individual's property rights calls for a strong justification, and the utilitarian argument
simply does not provide one.
The benefit of a few privileged men at the expense of all property owners
simply falls short of an adequate justification for copyrights and patents. For those
who hold to a rights-based ethic, copyrights and patents can only be justified by the
right of some party that preempts the property rights of others. While it is not required
that every law be explained in terms of rights, copyrights and patents still require a
natural law basis. The utilitarian defense does not provide such a basis to justify these
laws. The value of the utilitarian argument lies in its relation to the common good.
While there must be a natural law basis for the human laws,
18
the law must also be for
the common good.
19
The utilitarian argument holds that copyrights and patents benefit
the common good of society by promoting invention and art, which in turn benefit the
common good. When determining whether something benefits the common good,
weighing the good and bad effects of legitimate options can be quite similar to
utilitarian comparisons. Without the natural law principles behind copyrights and
patents, however, a fruitful discussion of the relative merits of this scheme over any
other possible scheme will be impossible.
CHAPTER 2
OVERVIEW AND CRITIQUE OF THE NATURAL RIGHTS ARGUMENT
Avoiding the whole muddy matter of comparing goods, the other set of
justifications for copyright and patent law simply claims that inventors and artists
have a certain right to their works by the very fact that they have created them.
Locke's labor theory and Hegel's personhood theory of property together make up the
core of natural rights arguments defending copyrights and patents. Both theories
defend copyrights and patents by extending property rights to intellectual works.
These two theories provide the foundation upon which other modern theories are
built. Because other natural rights arguments either derive from these two theories or
do not defend the ability to charge for the reproduction of protected works, but rather
protect the artist or inventor's reputation in some way or another,
20
these two should
provide a sufficient consideration of the matter.
The bodies of laws in Europe that correspond to copyright laws in the United
States are labeled "author's rights."
21
These rights are supposedly rights derived from
the relationship of the artist or inventor to his work. This rationale requires that man
by his nature has a right to own intellectual property. European intellectual property
laws are thus based in non-utilitarian theories of rights.
22

In a comprehensive overview of theories of intellectual property for The
Encyclopedia of Law and Economics, Peter Menell lists eight "Non-Utilitarian
Theories of Intellectual Property."
23
Among these, the two considered here, the labor
theory and personhood theory, seem to be the only ones that are original. All of the
other theories are derived from either one or both of them, or from utilitarianism. The
"Libertarian,"
24
"Distributive Justice,"
25
"Democratic,"
26
and "Ecological"
27
theories
are all based in these three foundational traditions. They may alter the emphasis given
to certain aspects of these traditions, or change the value given to certain goods in the
utilitarian calculus, but they finally rest on the same principles. Thus a consideration
of Hegel and Locke's theories, as well as utilitarianism, will include these other
theories.
The last two theories are based in a consideration of whether the artist or
inventor is owed anything and by whom. The "Radical/Socialist"
28
theory simply
denies that concepts such as "author" and "inventor" have meaning. This denial is
fundamentally a critique of the arguments that inventors or artists are owed for their
works. Because inventions and art are products of the community, the individual artist
or inventor does not seem to be especially owed for the work. The "Unjust
Enrichment"
29
theory seems to be the reverse of this. This theory holds that artists and
inventors benefit society and thus need to be compensated by their labor. These last
two theories will be considered below when considering who owes artists and
inventors compensation.
Lockean Natural Rights
Locke's theory of property derives from man's labor. He explains this
derivation in his Second Treatise on Government:
Every Man has a Property in his own Person. This no Body has any Right to but
himself. The Labour of his Body, and the Work of his Hands, we may say, are properly
his. Whatsoever then he removes out of the State that Nature hath provided, and
left it in, he hath mixed his Labourwith, and joyned to it something that is his own,
and thereby makes it his Property.
30

Because property proceeds from labor, which is, in fact, "owned" according to this
theory, it seems that labor can also be the basis of the ownership of intellectual
property. Intellectual works are the product of one's mental labor, and only take form
outside of the mind by means of the labor of the body.
31
Before the idea is expressed,
it must belong to the man as a part of his person, and thus seems to be his property
according to Locke's account of self-ownership. This idea that a man owns himself
and his actions leads to a very strong interpretation of property rights to intellectual
works. Every idea is owned by its original thinker and its original expression must
also be his as it can only be expressed by his action.
There is an inherent difficulty with this strong account of ownership of ideas. If
a man has complete ownership of himself, and his ideas are a part of himself, then
what happens when he thinks something already thought by another? If the idea is
owned by the original thinker, then the original thinker owns part of the second
thinker. This is at odds with Locke's contention that nobody has any right to another's
person. But then if the idea is owned by the second thinker, he then has ownership of
his expression of the idea, which then makes ownership of ideas nugatory.
Copyrights and patents are distinguished from ownership of ideas according to
law. Copyrights, at least those covered in Black's Law Dictionary, do not extend to
"any idea, procedure, process, system, method of operation, concept, principle, or
discovery, regardless of the form in which it is described, explained, illustrated, or
embodied in such a work."
32
In the same dictionary, a patent is limited to an inventor's
invention.
33
While these clarifications make it very clear that copyrights are not of
ideas, but rather of "certain literary or artistic productions,"
34
it also makes it clear that
they are rights to intangible things. N. Stephan Kinsella, in a critique of intellectual
property, considers intellectual property rights to be rights "to ideas, as expressed
(copyrights), or as embodied in a practical implementation (patents)."
35
A copyright or
patent does not simply extend to the one instance of the invention or artistic
production made by the inventor or artist, but to every instance made by anyone. Thus
while copyrights and patents might be limited to ideas expressed or embodied (in a
practical implementation), they are rights to "ideal objects,"
36
in Kinsella's language,
or "forms" in Thomistic language.
If a defense of copyrights and patents is based in Locke's theory of property, it
must hold that ideas, even if only certain kinds and in certain ways, can be owned as
property. The ownership of a certain idea when expressed or embodied, however, is
not reconcilable with owning oneself and the product of one's labor. The product of
one's labor becomes the property, to some extent, of the copyright or patent holder.
Locke's theory does not lead to a coherent synthesis of copyrights, patents, and
property rights.
Hegelian Natural Rights
Hegel, instead of concentrating on the labor involved in creating intellectual
works, rather bases his defense of property in personality. In the Philosophy of Right,
Hegel gives the basis for taking possession of things:
A person has as his substantive end the right of putting his will into any and every
thing and thereby making it his, because it has no such end in itself and derives its
destiny and soul from his will. This is the absolute right of appropriation which man
has over all 'things'.
37

This power over a thing "constitutes possession,"
38
and because "the true and right
factor in possession" is property,
39
property is derived from man's right to "put" his
will "into" a thing and make it his.
Because of this emphasis on personality, Hegel considers the very acts of
copying a literary work to be expressions of personality:
In the case of works or art, the form-the portrayal of thought in an external medium-
is, regarded as a thing, so peculiarly the property of the individual artist that a copy
of a work of art is essentially a product of the copyist's own mental and technical
ability.
40

While this would seem to preclude any sort of right of the original author to the copy,
Hegel does allow the author to retain the "universal ways and means of multiplying
such books and machines, &c."
41
This is in spite of the fact that the owner of the copy
"has complete and free ownership of that copy qua a singlething."
42

Hegel distinguishes between the expression itself, the "single thing," and the
method of expression. The expression itself is alienated when sold, but Hegel holds
that the method of expression can be retained by the originator. He divides a work into
the work as "possession" and the work as "capital asset."
43
When a copy of an
intellectual work is purchased, it is simply a possession. The work as capital asset has
not been sold or alienated in any way and is retained by the originator of the work. An
unauthorized copyist is thus stealing the capital asset from its rightful owner.
Hegel sees at least part of the difficulty with this division as he continues to
consider the properties of intellectual works as possessions. Although he claims that
intellectual works are not "accessio naturalis,"
44
that is things which grow or
reproduce by nature, he does admit that once one has learned from one's possessed
work, one may freely reproduce one's learning in a book or other medium. On the
other hand, he holds that, at some difficult-to-discern point, reproducing another's
ideas in one's own work is plagiarism, but not just plagiarism, it is a theft of the other's
capital asset. He thus points out an inherent difficulty in this system of dividing
intellectual works into simple possessions and capital assets: the division is vague.
This difficulty in distinguishing between the two aspects of intellectual works arises
from the unity of the work. The work is one work. When using a work as intended,
one learns the ideas of the work. These learned ideas will naturally and rightly be
expressed in intellectual works. Expressing others' ideas without permission is theft,
however. Thus the natural process of using an intellectual work as intended leads to
violation of the originator's ownership of the universal method of expression.
Hegel's division is admittedly in the "sphere of external use,"
45
and not of the
thing itself. This means that the division does not involve one part which is sold and
another part which is retained, but rather the same thing sold for the purpose of a
certain use. While Hegel's theory provides an explanation of the distinction between
owning the instance of a work which may be enjoyed and owning the abstract work
and thus the ability to reproduce it in copies, his theory leaves the distinction
admittedly vague.
The reason that the distinction between owning the instance of the work and
not the abstract work must remain vague is that it becomes contradictory. The work
does not exist in an abstract state where it may be owned. It only exists in its
instances, which are each owned according to the normal manner. The kind of control
that the holder of the copyright or patent is said to have over the instances which he
does not own certainly seems to indicate a kind of ownership of the instances. Hegel's
theory of expressing one's personality is at odds with the kind of limitations that
copyrights and patents place upon owners of protected works.
The Failure of Natural Rights Theories
Both Lockean and Hegelian theories about copyrights and patents fail for the
same reason. They both present arguments in defense of ownership of physical
property. By then extending ownership to a thing abstracted from the actual instance,
a new principle of ownership is created. There then exist two ways in which a thing
can be owned by nature, and these two ways can come into conflict. These conflicts,
where the owner of the instance wishes to copy the instance against the will of the
owner of the abstracted thing, can only be settled by either contradicting the original
argument for property, or by making "intellectual property" meaningless.
If the holder of the copyright or patent is determined to have authority over the
owner of the instance, then the primary owner has lost either some part of his labor or
the expression of his personality. The original argument for property is thus
undermined. But if the primary owner is determined to have the authority, then the
holder of the copyright or patent has no power at all. Thus the natural rights theories
do not provide a coherent account for "intellectual property" rights. The reason for
this failure lies in a poor understanding of the nature of material things and the reason
for the ownership of them.
CHAPTER 3
A CRITIQUE OF THE NOTION OF INTELLECTUAL PROPERTY
Because utilitarian and modern natural rights arguments do not yield a
satisfactory account of rights over intellectual works, another tack must be taken. A
cogent, consistent, and sound theory of rights to intellectual works must be based in
the natural law, or else the rights will not be true rights. For man, this means that they
must be based in his rational nature and in the nature of intellectual works. Thus by
examining the basis of ownership, the notion of "intellectual property" can be
critiqued. After this critique, the real basis for copyrights and patents can be found by
looking at the nature of the activity of the artist or inventor and those affected by these
legal restrictions.
Ownership and Limitation
In order to determine whether intellectual works can be owned, the principle by
which a thing can be owned must be discerned. Ownership itself is a relation between
a man and a thing, but not necessarily a substance. In order for ownership to be a good
institution, this relation must be compatible with human nature, and indeed derivable
from it. An example of an institution that meets this criteria is marriage, and an
example of one that fails is slavery. This human nature with which the institution must
be compatible implies its own flourishing as its purpose, and this flourishing involves
man providing for his own rational, human existence. Because man is corporeal, in
order to continue existing and fulfill his nature he must appropriate external goods for
his use. Thus, it is certainly in accord with human nature for man to use external
goods.
Ownership is not simply the use of external goods, however. Ownership is an
exclusive relation with things to procure and dispense them.
46
This exclusive relation
excludes other men, and yet, if it is based in human nature, it must be open to all.
Since human nature is common to all men, it is good for all men to appropriate
external goods to their own use. These external goods, however, can usually only be
used for one purpose at a time. Thus, in order for each man to provide for his own life,
external things must be divided among men. Thus a manner of division is needed in
order for all men to flourish together, because all men have the same need to provide
for human existence.
The manner of division most in accord with man's reason is a division such that
each man may procure and dispense certain external goods as his own. This is the
most reasonable manner because a man will take greater care to procure goods for
himself than he would for all in common, the goods will be managed better because
each thing will have a clearly defined governor, and men can be content with their
own goods instead of relying on the community for their providence.
47
Thus the
ability to procure and dispense external goods is natural to man. This is ownership,
and ownership of external goods is thus in accord with man's nature. The reason that
ownership of external goods is necessary for man's nature is that the goods are
limited. One man cannot enjoy these goods without diminishing the enjoyment of
another man, and yet man must enjoy these goods to flourish. This is quite clear in the
case of a consumable good where one man's eating an apple prevents another from
eating the same apple. Productive goods, such as an ax, are also limited in this way. If
one man is cutting a tree with his ax, another cannot at the same time cut another tree
with the same ax. The sun, however, can be enjoyed by all men without diminishing
the enjoyment of any other man. If one man enjoys the sun in his yard, the sun in
another's yard is unaffected.
The criteria of limitation is not simply useful for determining whether
something can be owned; it is in fact the quality of things which makes ownership
necessary. If things were not limited, then there would be no need for property. If two
men could eat the same, entire apple, and chop with the same ax at the same time,
then the apple and the ax could remain unowned in the same way that the sun is
unowned. They cannot, however, and so they are not. This property of limitation is
crucial to determining whether intellectual works can be owned. Once it is granted
that anything without this property of limitation cannot be owned as property,
intellectual works can no longer be considered property.
Intellectual Works and Limitation
Intellectual works are not limited in their enjoyment, and thus not subject to
ownership. Intellectual works, abstracted from the material in which they subsist, can
be enjoyed by two men at the same time without diminishing the enjoyment of either.
If one man hangs his copy of the Mona Lisa in a blue room in his house, and another
man does something quite different with his own copy, the second man does not
diminish the first man's copy being where it is. Nor does one man's reading or holding
a book diminish another's reading or holding another copy of the same book. The
same applies to music and a myriad of other inventions. This consideration of the
unlimited quality of these intellectual works is only valid when the work is considered
apart from its matter. As individuated in this book, for example, the thing is limited
and can only be completely possessed by one man. This kind of limitation, however,
only points to man's ability to own these pages and this ink, not the work as abstracted
from this matter. Thus a book can be owned just as a log can be owned; the qualities
of color and shape cannot be owned apart from the book or the log.
An apparent difficulty with this pronouncement that intellectual works are not
limited is that when an additional man comes to possess a copy of a given item, all
other items of that kind lose value. If a certain item loses value because of the
possession of others, it would seem that the thing is in some way limited in its
enjoyment. Three failures of this objection are that the value in question only derives
from the failure of other men to adequately provide for a humane existence, that it
does not apply much to publicized information (which is the domain of copyrights and
patents), and that it concerns only the thing as individuated.
The first failure of this apparent difficulty is that the value lost by other's
possessing the same kind of thing is simply value generated by the difficulty in
obtaining a thing of its kind. This is why a rare, imported fruit is more expensive than
a fruit grown locally. In addition, if one man guards the only book containing certain
important pieces of information, that book is more valuable than it would be if there
were another copy held by another. This additional value, however, only comes about
because of some men's desire for the thing. This desire is only worth considering if it
is a legitimate desire, and if it is a legitimate desire, then it is one that would be good
for these men to have fulfilled. Thus the value generated by the rarity of a thing is the
product of some men not being able to fulfill a legitimate desire. However, the
purpose of property is to ensure that men are able to provide for a humane existence,
which is for what all legitimate, human desires aim. Thus an objection from loss of
value due to loss of rarity does not extend the argument for property, and indeed
seems contrary to human nature.
The second failure of this apparent difficulty is that it does not apply well to
publicized information. The information in a publicized book is available to all.
Copyrights and patents do nothing to prevent men from reading books, listening to
music, looking at paintings, or studying schematics. Thus the enjoyment of these
things is not protected by copyrights and patents. It is only the keeping of a secret or
privileged information that can safeguard the information's value. Once a work has
become publicized, it is no longer secret or privileged information. Secrets and such
are governed by other natural law principles and applications of property rights. Once
a thing has become public, its rarity is either negligible, or artificially induced. Thus
this rarity and its attendant limitation of value are not natural consequences and thus
do not derive from human nature.
The third failure of this apparent difficulty is that it only applies to the things as
individuated. The value lost by the reproduction of an intellectual work is not that of
viewing or otherwise enjoying the work, because the work is public. The value is only
lost by the creation of additional copies which must be materially individuated. This is
no different from the loss of value suffered by apples when they become more
plentiful, or that of axes when more are made. It is only the individual apples or axes
that lose value, not appleness or axeness themselves. An individual book loses some
value as more copies are printed, but it is the individual book itself that loses value.
This comparison only shows that a book can be owned in the same way that an apple
is owned, not that the writing abstracted from the book can be owned.
The criteria of limitation needed for ownership is found in the nature of a
material thing. There are two intrinsic causes for the material thing being the way it is:
the first is its particular configuration, or form, and the other is what the thing is made
of, or the matter. In the case of a bronze bust of Athena, the bronze is the matter of the
statue, and the shape of Athena is the form of the statue. Now the bronze could have
different forms, and the shape of Athena could be imposed on different matter. In this
instance the bronze and the shape of Athena are together, and together they make the
statue what it is. The limitation of the bust comes not from its form, but rather from its
matter. It is not because the statue is of Athena that it cannot be made into two busts
of Athena, equal in size and weight to the original. It is rather because of the matter of
the statue, the bronze, that it is limited. The form of Athena admits many copies of the
statue, but the particular bronze only admits a certain size and weight. It is the matter
that individuates the form and thus is the cause of its limitation. A form apart from the
matter that individuates it is unlimited. Because a thing can only be owned if it is
limited, it can only be owned as an individuated form. It is only when a form is
individuated in matter that it becomes limited and thus subject to ownership. The form
of apple is unlimited. It is only this apple, this instance of the form of apple
individuated in this matter, that can be owned. Similarly with an ax, the form of ax is
not limited; only the instances of the ax are limited. Because of the unlimited
character of forms, they fail to meet the criteria needed for a thing to be owned.
Copyrights and patents protect a form from being reproduced in additional
instances against the permission of a privileged individual. They do not protect a
limited thing, but rather an unlimited thing. While the original manuscript of a book is
individuated in matter and subject to ownership, its content is not owned apart from
the manuscript. Thus when copies of the manuscript are printed and publicized, the
original manuscript remains whole and its owner is unharmed apart from the loss of
rarity value. Its form and use are still intact. The original manuscript is still
completely owned by the author and is not injured by the publication. The copies,
however, must be produced in matter which already belongs to someone. Because of
the manner in which ownership is tied to the matter of a thing, it is actually the owner
of the paper and ink used to produce the copy who truly owns the copy.
Ownership is tied to the matter of the thing owned because the thing can
undergo a substantial change and yet remain the original owner's property. Matter is
not only the cause of the thing's limitation, but also its continuous ownership. If a tree
is cut down and divided into logs, the tree has undergone substantial change. Yet the
owner of the tree is the owner of the logs. The only thing which remains in this
change is the matter of the tree, and thus the matter is the only thing which could
continue to be related to the owner. Thus when the property of a man is given a
copyrighted form, he is still the owner of the entire substance because he is the owner
of that from which the matter came.
In sum, a form cannot be owned apart from matter. Thus the kind of ownership
described by "intellectual property" is only property by analogy at most. This means
that an artist does not naturally come to own the form of his artwork in a way that
allows him to determine the procurement and disposal of all instances of that form.
Concretely, this means that, apart from human positive law, a man may make a copy
of a book in his possession without fear that he has violated the property rights of
another.
The Basis for Copyrights and Patents
This conclusion will strike many as strange, unreasonable, or simply wrong.
There seems to be an intuitive desire for the artist to be recompensed for his work.
That the artist should be recompensed for his work, however, is a separate matter from
property. Being paid for one's labor is a matter of commutative justice, and modern
copyrights and patents derive their legitimacy from commutative justice. This matter
of recompense for labor is not derived directly from ownership. This can be seen in
the case of the woodsman who is hired to cut another's tree must be paid, but not
because he owns the tree or the logs he makes. He must be paid because of
commutative justice. The woodsman increases the value of the property of another,
and this other must increase the value of the woodsman's property equally for justice
to be served.
The case of the author is different. An author does not increase the value of
pages and ink in the same way that a woodsman increases the value of wood. The
author is not the efficient cause of the book; it is the printer who made the book the
way it is. The artist or inventor holds a position much more like a teacher or master
craftsman who shows others how to do something. When the master blacksmith
shows an apprentice how to forge a given piece, it is still the apprentice who has
increased the value of the iron. When this apprentice goes on to make this piece
elsewhere, it is he who is owed compensation, not his master. The teacher has passed
on the knowledge by which the student does what he does. In the same way, the
author passes on the knowledge needed to print a specific book; the inventor passes on
the knowledge needed to make a certain device; the artist passes on the knowledge
needed to reproduce a given painting, sculpture, or musical piece.
The knowledge involved in these intellectual works has value of an order
different from that of the thing produced. Because this knowledge can be used to
generate an unlimited number of the things, it transcends any material value, because
material things are limited. In another sense, however, commutative justice is satisfied
by the simple fact that the author, artist, or inventor possesses the good that he is
giving others. When the woodsman cuts the tree, he does not possess the logs or the
value that he added to the wood. Thus commutative justice is only satisfied when he is
given something of value equal to that which he added. The teacher, however, already
possesses the value that he gives to his student. The teacher should be recompensed
for his time simply because he is employed to teach, and thus must support his
existence from the wages he receives, but he does not need to be paid for the value of
his "product," knowledge, in the way that a farmer must be paid for his products.
Thus the artist or inventor may charge for the service of passing on the
knowledge, the form of his book, painting, sculpture, song, or invention, but not for
the value of this knowledge itself, because he still possesses the value. The value of
his work would matter when selling an individual instance of his work, but not the
knowledge of the work from which it may be reproduced. The reason that someone
might want to purchase this given book, for example, may be the book's content. It
would seem then that the author is the cause of the book's value to the individual
purchaser. While this is certainly possible, as the form of the thing determines its
value, it does not follow that the author is owed money for the copy. The master
blacksmith gave a pattern to his apprentice which could very well be the reason that
the apprentice's work is valuable in a given case. Thus the master would, indeed, be a
cause of the ironwork's value, but he is not owed for the given piece, it is rather his
apprentice who is owed.
Even though the artist or inventor cannot charge for the form apart from its
matter, he should be paid for his labor. If, then, an artist is hired to sculpt a stone, he
should be paid for this task in the same way that a woodsman is paid for cutting wood.
If copies are then made of the statue by others, the sculptor did no more work and is
owed no greater payment. A man is not owed twice his fee when two others benefit
from what would normally benefit only one. Plowing a shared driveway, for example,
takes no more work than an unshared driveway in similar conditions, and thus
deserves no more total compensation. This principle applies to any work of art or
invention. This method of payment is the foundation upon which the patron system
was founded. The patron system is that system wherein certain men support artists or
inventors, not only for their own good, but for the good of others as well. The patron
may well be interested primarily in his own benefit, but the creation of intellectual
works which are not kept secret then benefits others. Although the most stable patron
would be a wealthy man who has adopted an artist, musicians playing on a street
corner operate on the patron system where some individuals donate money, but all
who pass by can listen to the music.
The patron system is fundamentally the basis of modern copyrights and patents.
Rulers in the past have patronized artists and inventors, sometimes, perhaps, for the
benefit of the country as well as their own. The copyright and patent system is, in fact,
a method of patronage enacted and enforced by the modern state. The holder of the
copyright or patent effectively becomes empowered by the state to impose and benefit
from a tax upon all copies of the protected work. This tax is accomplished by means
of a prohibition on all copies made without the permission of the copyright or patent
holder. Thus a copyright or patent is the grant of a temporary, state-enforced
monopoly.
The natural law basis of copyrights and patents thus lies in the power of the
state. The rights over intellectual works are not natural rights that must be recognized
by all just governments, but rather a system of patronage chosen by certain states.
Whether this patronage system is just is another question.
CONCLUSION
This critique of copyrights and patents leaves many protections for the author,
artist, and inventor intact. Laws against plagiarism are unaffected, and thus men can
achieve fame for their work apart from copyrights and patents. Trade secrets may still
be kept in order to give an inventor an edge. In fact, even without copyrights, authors
can keep their works secret until paid in advance, and thus make a livelihood.
Abolishing copyrights and patents would not be quite as drastic as many would
suppose. The fact that works no longer protected by copyrights are still published
shows that publishers do not require copyrights in order to profit from such works.
Musicians still make money by means of live performances. An original painting or
sculpture still has far greater value than a copy. While it may be true that those who
only engage in these intellectual pursuits in order to profit may no longer do so, there
are still many others who would continue for the love of it. Fame and accolades are
popular motivations.
In order to determine whether copyrights and patents should be abolished, their
effect on the common good must be considered. This consideration will resemble that
of a utilitarian cost comparison. It is critical to this consideration to understand that
copyrights and patents derive from natural law principles which can be satisfied in
other ways. The natural rights arguments which have been developing lead to a
conclusion which would prevent any sort of consideration of abolishing copyrights
and patents.
The man who wishes to make a copy of some protected work now, however, is
not so much interested in changing the law as determining whether what he wishes to
do is just. His attitude toward such works is explained by the fundamental difference
between the state-sponsored patronage and actual theft. Copying a protected work is
not theft in the way that stealing an apple or an ax is theft. However, if he is
preventing the artist or inventor from being paid for his labor, not his goods, then he is
causing injury. Once the artist or inventor has been fully compensated for his labor, he
is owed no more in justice. Yet, the law itself must be considered. If the state has the
power to collect taxes, and if it has the power to censor for the common good
(effectively creating a monopoly), and if copyrights and patents are just, then the laws
must be obeyed.
Once a work has been published, it has been made available to all. The reason
for making something public is so that it may be enjoyed by many. Notions of
intellectual property work against this fundamental motive for publication, instead
focusing the act of publication on profiting from the work. They even prevent men
from being as generous as they wish to be with their neighbors and their property,
because some of their property may not be shared legally. Copyrights and patents thus
deserve a critical investigation which will determine their compatibility with the
common good.
WORKS CITED
Aquinas, St. Thomas. Summa Theologica. Translated by Fathers of the English
Dominican Province. New York: Benzinger Bros., 1948. Reprint, Allen, Texas:
Christian Classics, 1981.
Bethell, Tom. The Noblest Triumph: Property and Prosperity through the Ages. New
York: St. Martin's Press, 1998.
Black, Henry Campbell. Black's Law Dictionary: Definitions of the Terms and
Phrases of American and English Jurisprudence, Ancient and Modern. 5th ed.
The publisher's editorial staff. St. Paul, Minn.: West Publishing Co., 1979.
Hegel. Hegel's Philosophy of Right. Trans. T. M. Knox. London: Oxford University
Press, 1967. Reprint, New York: Oxford University Press, 1979.
Kinsella, N. Stephan. "Against intellectual property." Journal of Libertarian
Studies 15, no. 2:1-53, Spring 2001.
Locke, John. Two Treatises of Government. 2d ed. New York: Cambridge University
Press, 1967.
Menell, Peter S. "1600, Intellectual Property: General Theories." Encyclopedia of Law
and Economics, ed. Boudewijn Bouckaert and Gerrit De Geest: 129-88, 1999.
Work in progress. Available at http://encyclo.findlaw.com/index.html; Internet.
Skorupski, John, ed. The Cambridge Companion to Mill. Cambridge: Cambridge
University Press, 1998.

FOOTNOTES
Note: These endnotes are formatted in the way that they were in the print
version of this thesis. In the print version, however, the numbering began anew in
each chapter. Full citations are required for the first reference to a work in each
chapter as well.
1
Throughout this document, "natural law" will be considered according to its
presentation by St. Thomas Aquinas, especially as it appears in his Summa
Theologiae.
2
Saint Thomas Aquinas, Summa Theologica, trans. Fathers of the English
Dominican Province (New York: Benzinger Brothers, 1948; reprint, Westminster:
Christian Classics, 1981), Prima Secundae, Question 95, article 2, corpus. All
subsequent references to the Summa Theologica will be from this translation and
edition, and will follow the standard notation, e.g., ST I-II, Q. 95, a. 2, c.
3
Ibid.
4
N. Stephan Kinsella, "Against Intellectual Property," Journal of Libertarian
Studies 15, no. 2 (Spring 2001): 3.
5
Peter S. Menell, "1600, Intellectual Property: General Theories," Encyclopedia
of Law and Economics, ed. Boudewijn Bouckaert and Gerrit De Geest, work in
progress; available from http://encyclo.findlaw.com/index.html; Internet; 149.
6
This paragraph is not intended as a defense of laws regarding trademarks,
plagiarism, forgery, and trade secrets, nor is it intended to indicate that these laws
derive directly from natural law. This paragraph merely indicates that the most basic
defense of these laws does not include recourse to the notion of "intellectual
property."
7
Menell, 131.
8
Tom Bethell, Noblest Triumph: Property and Prosperity through the
Ages (New York: St. Martin's Press, 1998), 259.
9
ST II-II, Q. 66, a. 1-2.
10
Wendy Donner, "Mill's Utilitarianism," in The Cambridge Companion to
Mill, ed. John Skorupski (Cambridge: Cambridge University Press, 1998), 257.
11
Jonathan Riley, "Mill's political economy: Ricardian science and liberal
utilitarian art" in The Cambridge Companion to Mill, 294.
12
Constitution of the United States of America, Article I, section 8, paragraph 8.
13
Peter S. Menell, "1600, Intellectual Property: General
Theories," Encyclopedia of Law and Economics, ed. Boudewijn Bouckaert and Gerrit
De Geest, work in progress; available from http://encyclo.findlaw.com/index.html;
Internet; 162.
14
These advantages are here taken alone and not considered in the context of
concomitant societal damage caused by many technologies developed alongside the
beneficial technologies. While the discussion of the overall effects of technology on
society is an important one, and one which is pertinent to the utilitarian defense of
patents, technological progress in general is here assumed to be good for the sake of
the utilitarian argument.
15
Donner, 257.
16
Menell, 133-146.
17
N. Stephan Kinsella, "Against Intellectual Property," Journal of Libertarian
Studies 15, no. 2 (Spring 2001): 15.
18
ST I-II, Q. 95, a. 4, c.
19
ST I-II, Q. 95, a. 3, c.
20
These other theories usually center around the author's supposed right to
control his work. These theories only protect the author from misuse of his works,
rather than his ability to exploit his work for profit.
21
Peter S. Menell, "1600, Intellectual Property: General
Theories," Encyclopedia of Law and Economics, ed. Boudewijn Bouckaert and Gerrit
De Geest, work in progress; available from http://encyclo.findlaw.com/index.html;
Internet; 156.
22
Ibid., 156.
23
Ibid., 156-163.
24
The Libertarian theories focus on the freedom of the individual and the effect
that copyrights have on this freedom. Menell, 159.
25
The Distributive justice theories are based upon justice and a number of
varying philosophical traditions. Menell, 160-1.
26
The Democratic theories focus on the political implications of copyrights,
especially with regard to democratic freedom of expression. Menell, 161.
27
The Ecological theories are built upon non-anthropomorphic premises. They
focus on the relation of man to his environment. Menell, 162-3.
28
Menell, 162.
29
Ibid., 158.
30
John Locke, Two Treatises of Government, 2d ed. (New York: Cambridge
University Press, 1967), 305-6.
31
That property be the work of one's hands does not seem to be a requirement,
else a man without hands could not own the work of his feet or teeth or so forth.
32
Henry Campbell Black, Black's Law Dictionary: Definitions of the Terms and
Phrases of American and English Jurisprudence, Ancient and Modern, 5th ed., the
publisher's editorial staff (St. Paul, Minn.: West Publishing Co., 1979), 304.
33
Ibid., 1013.
34
Ibid., 304.
35
N. Stephan Kinsella, "Against Intellectual Property," Journal of Libertarian
Studies 15, no. 2 (Spring 2001): 3.
36
Ibid., 8.
37
Hegel, Hegel's Philosophy of Right, trans. T. M. Knox (London: Oxford
University Press, 1967; reprint, New York: Oxford University Press, 1979), 41 (page
citations are to the reprint edition).
38
Ibid., 42.
39
Ibid.
40
Ibid., 54.
41
Ibid.
42
Ibid.
43
Ibid.
44
Ibid.
45
Ibid.
46
ST II-II, Q. 66, a. 2, c.
47
Ibid.