Dossiers.

Intellectual property, general terms for an important debate

I - What is intellectual property?

A - On defence of intellectual property

B - Is intellectual property a natural property right?

C - Four different types of intellectual property

II - Laws about intellectual property create monopolies and override the very homesteading rule that is at the foundation of all individual property rights.

A - Individual or intellectual property?

B - Copy or not copy?

C - Intellectual property, knowledge and contract

III - An example: Music and internet

A - The SNEP point of view

B - Legalized downloads

C - Free download as a new mean to develop culture

D - Major disc editors as a lobby

E - Other free downloads and solutions

Intro

Nowadays there are a lot of debates over intellectual property, and that is why intellectual property is today one of the most challenging topics in law and economics.

Has intellectual property the same characteristics than property on tangible goods? Are there individual rights to one's intellectual creations, such as inventions or written works? Since new ideas, artistic creations, and innovations continually enrich us, what is the harm in moving with the times by recognizing new forms of property?

Finally we will see what is really happening concerning intellectual property and music downloads .

I - What is intellectual property?

There are different positions about intellectual property. A conception based on utilitarian principles and another one based on natural rights. This is an important debate in economics not concluded yet. We will try in this part to glimpse the economists' different point of view. Why could we be for the intellectual property, and why could we be against?

A - On defence of intellectual property

Intellectual property defenders develop at least two important argumentations. The one based on utilitarian principles and the other on natural law principles. The first conception is founded on an efficiency view of market. Property right is the most efficient solution to solve the problem of allocation of scarce resources. On the market there are entrepreneurs who try to find the better arrangement of scarce means of production to answer a demand of consumption. The private property of means of production implies that all these means have a price. This price depends on the available quantity and the different agent's preferences. The entrepreneurial function is to find the best mean to produce a good who consumers demand. Then the price indicates information about the availability of the factor of production. The production will belong to the entrepreneur and the ownership's firm (shareholders). The entrepreneur engages himself into this uncertain activity. Uncertainty is important in the utilitarian development because it justifies protection to entrepreneurs. As Schumpeter wrote, market process is a 'destruction-creative' process. He explained economic growth in western countries, more generally capitalist economies, by the fact that innovation brings monopoly in a certain period. Schumpeter insists on the role of patent to favourite innovation, from huge firm generally, and then economic growth. Because an innovation implies important investments, and investments depends on interest rate that is especially subjective and depends itself on risk adversity of decision maker, patents must provide certain profitability and reduce uncertainty.

Another kind of argumentation was developed by Israel Kirzner. Market is already seen as a process. Each agents act on market to search a monopoly. This is the driving force in the market, which is a discovery process. Kirzner approach thorough the Schumpeter's one by the description of the entrepreneurial role in the economy. Entrepreneurs will act to discover opportunity on market to have a monopoly position and patents for innovations constitutes one of them.

Later, another kind of argumentation was developed in a different view of economics, especially with Kenneth Arrow, a Nobel price in economics. His approach is based on general equilibrium theory and represents another type of development after Schumpeter's work. If Kirzner developed a disequilibrium analysis in dynamic, Arrow and others theorist in his realm, prefer an equilibrium analysis in static comparative. Arrow wanted to explain how we passed from an equilibrium position to another better? And he found in Schumpeter's work the idea of innovation in production process and integrates it in its analysis. He considered innovation, new ideas, discovery of a new process, and he is certainly right, as a public good. A public good is a non excluable good and non rivalry. It signifies that if someone is consuming this good it does not prevent anyone to consume it during the same moment. Using the Pythagoras theorem does not prevent anybody to use it at the same time. Because innovation belongs to this type of good, indeed a new production process can be used by anybody without prevent anyone to do the same, innovation must benefit from some protection to encourage people to invest in. If anybody can use it, nobody would assume the cost of research and development without gather benefits. As one of the principal economic growth factor, from Denison 's study showed, productivities earnings provide for 68% from technological progress and scientifically progress, innovations must be protected by patents.

Natural law theorists' argumentation about intellectual property is based on a lockean principle. Each person is the owner of his body and the produce of his work. As Tom Palmer wrote: "natural law right to the fruit of one's labour. Under this view, just as one has a right to the crops one plants, so one has a right to the ideas one generates and the art one produces". Invention is a produce of men's work and use of his mind. And discovery have to belong, following a principle establish by John Locke again, to the first occupier. This approach, more philosophic, is interesting because it is based on what are human being and its regarding on how we can live in free and peace society. Property rights exist to solve conflict about allocation of scarce resources. This is an institution that emerges through human interactions and resulting from human behaviour. From Cicero to Kant, Locke, Smith, Hayek and others, the suum cuique (at each person his ownership), is the principle to respect for a free society. This view opens a huge debate and profoundly interesting that we will evocate some terms later.

B - Is intellectual property a natural property right?

Those arguments are debatable. We will discuss about internal critics of those theoretical analysis.

Utilitarian point of view is the main theory and the foundation of the nowadays intellectual property laws. Those utilitarianism principles appear in the American constitution to defend the right for intellectual property. Patent law and copyright law are managed by federal government proving the importance given by the constitution, ' to promote the progress of science and useful arts '. But this theory can be discussed. Indeed, to promote development and economic growth, government have to favourite innovation in giving monopoly to inventors. This is an approach defended, for instance, by the federal judge Richard Posner, one of the founding father of law and economics analysis. The main justification for intellectual property is the wealth, or utility, maximization. But can we use immoral means, authorized monopoly which hampered use by others of their property in a certain way define by the patent? Patents and copyrights are a pure restriction from individual freedom in using and abusing their property. Can we restrict human liberty for a hypothetic higher common wealth? Can we erect as a constitutional principle such a restrictive principle for freedom? Worth than this, they are in an incoherent position when they suppose that the cost of intellectual property is lower than benefits. Such an assertion implies to make interpersonal comparisons between different individual utility, which is completely impossible (1) . Things have value without a market price, and market price is not a measure of value. Finally, this position is a concern of a value judgement because, when we see the huge sum of money invest in R&D, we can not be sure that costs are lower than benefits. When we look after the legitimacy of a law, we should not see only the efficiency but also its legitimacy from an ethical point of view, and the ethic foundation about the use of violence to enforce the law.

Natural rights theory is also opens to discussion and critics. For Ayn Rand who is a defender of this position, we have to protect patents and copyrights because "[there is] a legal implementation of the base of all property rights: a man's right to the product of his mind. " But this view is quite problematic. How can we establish what belongs to the man, and then what is produce by his mind? This protection can protect a certain type of creation and the distinction is unfortunately arbitrary. Patents must be enforced only in the framework of practical applications. We can not prevent a philosopher or scientist to use a scientific truth discovery. So Ayn Rand will distinguish between the discovery, no patentable, and the invention, patentable. The philosophic or scientific discovery is not known again but still exists. This is not an invention. Before the discovery of the gravitation theory, apples ever felt to the ground! It is hard to clearly distinguish between the invention and the discovery. Do we attribute the Einstein's famous discovery on E=mc² or should we attribute that to generations of physicians before who work for this discovery? Should we recognize a specific right to discover in fundamental science of a special formula used in industrial process? TAs far as clear is the distinction, it may appear unjust too. For Galambos, an extreme advocate in defence of intellectual property as a natural right, all things should be an intellectual property. Because all human actions result from ideas, all the results of our acts could be our property and for the eternity. In pushing the natural rights argumentation toward its extreme position, Galambos put in evidence some difficulties. This could be an unbearable situation in which each of us should pay for everything. Galambos, for instance, to be coherent with him, put a piece of money for the descendant of Thomas Paine, each time he uses the word 'liberty'. His students are not allowed to take notes in his course! With the argumentation of Galambos, we can see the incoherencies of this theory and for this reason we could pay to him some royalties.

But more profoundly, the real matter with this point to view is about property. If property rights are the better means to solve the problem of allocation of scarce resources, it is not the case with free resources. And to be just, property rights must be define clearly and in an objective way, they have to be visible. Ideas are not scarce in the economics sense. As we seen before, if I use an idea I do not prevent another to using this idea at the same time. Even Ayn Rand showed that an idea can not be consumed. So, to recognize a property on ideas remains to create an artificial scarcity. And then there is a problem about legitimacy of this right. As Carlo Lottieri argues, intellectual property is not a property right because there is a definite length. It is not a necessary right. For instance, intellectual property did not exist in the 18 th century, so it did not prevent Bach to write beautiful music!

C - Four different types of intellectual property

We can distinguish four types of intellectual property in the law: patent, copyrights, trademark and trade secret. Their functions could be different, their origins too. Let examine these differences and the effect in economy and individual right.

Patents and copyrights are defendable with too many difficulties. We have seen that they create artificial rights and so artificial monopoly. A patent or copyright, give the exclusive right to use scarce resource in special way. In this sense, it forbids others persons to use their property, even if they are owners of the resources, in the way define by the patent. This is an unbelievable freedom of acting restriction. You can easily imagine two people who have an idea in different days; the last can not develop his idea if the other has a patent, even if the idea came from his mind. It may be provide special situations. For instance, in January 2000, the European Office gives a patent for an American society, Myriad genetics, about a gene involved in breast cancer. The problem is that an extremely large protection was granted by the Office about molecular technical of cancer detection. This exclusive monopoly in technical cancer screening is insupportable for women who have to pay an important rent. A lot of problems are involved by patents. This is also a reduction of competition and probably efficiency. With a monopoly position, the firm is disincentive to invest for productivity or whatever.

The case of trademark and trade secret is completely different. These protections are individual's protections. The trademark is important for a product and for the consumer. Trademarks serve to consumer for their choice. It serves to firm to distinguish them from the others. A product is chosen for different qualities and the trademark is often associated in consumer's mind with quality, type of service, price, etc. About trade secret, it protects ideas, process production, technical means, etc, against the misappropriation. This is a law to struggle against industrial spy. These two laws are founded on the basis of the contract and the individual rights. They are by nature different from the two others. Note that Coca Cola has not any patent but a secret preciously watched. The important thing with these methods is the fact that they do not break rights to others to use ideas.

II. Laws about intellectual property create monopolies and override the very homesteading rule that is at the foundation of all individual property rights.

A - Individual or intellectual property?

Intellectual property allows inventors to take advantage of their ideas and to have a kind of limited monopoly during several years in order to finance the use and manufacture of their inventions.

Consequently copyrights and patents both grant this limited monopoly : the patent lasts last

from the date of issuance until twenty years from the original filing date of the patent application and the copyright lasts for the life of the author plus seventy years, or for a total of ninety-five years in cases in which the employer owns the copyright.

However there are differences between having an idea and creating something with it. As we saw earlier a patent only grants the right to exclude (i.e., to prevent others from practicing the patented invention); it does not actually grant to the patentee the right to use the patented invention. Thus patents are good for inventors who are able to manufacture their inventions.

Besides a copyrights lasts enough time to create a monopoly so strong that no one could enter the market and contest it.

Copyrights and patents incite only big companies to create and are dangerous for consumers, since monoply always involves higher prices and less quantity than competition.

Intellectual property gives a partial property on tangible porperty of others due to the "coming up with an idea" rule. Indeed copyrights and patents provides to inventors a right to forbid to someone to use its property as he wants to. Imagine an inventor finding a very efficient technique to dig a well, thanks to patents, he can prevent all others in the world from digging wells in this manner, even on their own propert y. But the question is the following : by digging in this manner on mine garden, am I stealing something from the inventor?

To take a more striking example, imagine the time when men lived in caves. One bright guy,

let's call him Galt-Magnon, decides to build a log cabin on an open field, near his crops. To be sure, this is a good idea, and others notice it. They naturally imitate Galt-Magnon, and they start building their own cabins. But the first man to invent a house, according to

intellectual property rights, would have a right to prevent others from building

houses on their own land, with their own logs, or to charge them a fee if they do build houses. It is plain that the innovator in these examples becomes a partial owner of the tangible property (land and logs) of others. Clearly, this rule flies in the face of the first-user homesteading rule : which is the foundation of the Lockean definition of individual property rights (i.e., the individual property rights defined and protected now by the Law).

According to inventors and intellectual property advocates, intellectual property enrich us and the society is better off with more inventions. If all the society is better off, we should let governments and public organizations create these "ideals objects ". Furthermore inventions increase wealth. Indeed new technologies increase the production of goods and the cost of production decreases in the same time. So the public welfare is increased! That is the reason why we can define intellectual property as public goods.

However a lot of inventions are useless and only the market shows wether an invention is efficient. How could only a few people in a government have as much ideas as all the people in a country? The problem of knowledge explained by Hayek in The Use of Knowledge states that no one can have all the knowledge existing in each individual's brain.

Thus there is no means the have a public organization of ideas and creations.

B - Copy or not copy?

As we saw earlier, property rights exist because of scarcity. Tangible goods are scarce and that involves property rights but ideas are not. According to S. Kinsella "because ideas are not scarce resources in the sense that physical conflict over their use is possible, they are not the proper subject of property rights designed to avoid such conflict."

As a matter of fact, when I dig a well in my land, using a new technique, the inventors of this technique can dig too and so does my neighbour. So what is the problem of copying in this case? As Thomas Jefferson, himself an inventor, as well as the first Patent Examiner in the U.S., wrote : "He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."

Since use of another's idea does not deprive him of its use, no conflict over its use is possible. Then there is no problem copying ideas.

Besides the wealth of inventor does not decrease because of me, if I do copy his idea or invention. Indeed the wealth of the inventor depends not only on me but on the firm which manufacture his invention too. Then the inventor has to find the best contract with the firm to be wealthy.

Bouckaert also argues that natural scarcity is what gives rise to the need for property rules, and that intellectual property laws create an artificial, unjustifiable scarcity. He noted that "patents and copyrights are unjustifiable monopolies granted by government legislation."

Palmer noted that "Monopoly privilege and censorship lie at the historical root of patent and copyright" in this book Are Patents and Copyrights Morally Justified .

Are intellectual property rights legitimate? To ask wether a law should be enacted or exist is to ask : is it proper to use force against certain people in certain circumstances. Clearly concerning intellectual property the answer is : no.

So copying seems to be defendable and even natural and protecting ideas is not morally nor economically defendable.

Finally even if we would like to protect ideas, inventions from copy it will be impossible and the fact of copying will remain impermissible for the inventor, as Kant noted : "Those who regard the publication of a book as the exercise of the rights of property in respect of a single copy-it may have come to the possessor as a [manuscript] of the author, or as a work printed by some prior publisher-and who yet would, by the reservation of certain rights, . . . go on to restrict the exercise of property rights, maintaining the illegality of reproduction-will never attain their end. For the rights of an author regarding his own thoughts remain to him notwithstanding the reprint; and as there cannot be a distinct permission given to the purchaser of a book for, and a limitation of, its use as property, how much less is a mere presumption sufficient for such a weight of obligation?" in "Was ist ein Buch?" in Die Metaphysic die Sitten .

Thus if copyrights and patents are created only in order to prevent from copy they are useless.

C - Intellectual property, knowledge and contract

Copyrights and patents have to concern only the producer-seller and the consumer. As we know the exchange is the result of a contract between both of them. So we could understand that someone who buy a book do not have the right to copy it, (even if we already saw that if he does so with his own paper and ink, according to Palmer and Bouckaert, the individual property rights of the author are safe), but what about someone who obtain the knowledge legally without contract?

Imagine I learn how to adjust my car's carburetor to double its efficiency, why should I have to pretend that I am ignorant of these things, and refrain from acting on this knowledge? I have not obligated myself by contract to the creator. I do not deny that contractual obligations can be implicit or tacit, but there is not even an implicit contract in such situations.

Then it cannot be said that the information has been stolen or fraudulently acquired. Even if there were confidentiality agreements between the inventor of this technique and another partie, it cannot be said that my use of my carburator physically interferes with the creator's use of his own tangible property. So, my adjusting my carburetor is not a breach of contract; it is not theft; and it is not physical trespass on the inventor's tangible property. Twiddling my carburetor does not violate the inventor's rights. At most, my use of this idea will diminish its value to the inventor by hampering his ability to monopolistically exploit it.

Then "so long as the knowledge is not obtained illicitly, the acquirer of this knowledge is free to act upon it" as Palmer said.

And yet, if someone possess a CD that he has legally obtained (purchased or granted by a friend), and decides to invite a lot of friends (more than twenty) and uses the CD, he might be sued by the SACEM (Music Society of Authors, Compositors and Editors), because the law states in this case that when there are more than twenty persons the use of music becomes public and thus rights to the aurthors have to be paid. Then why is it different when someone discloses the plot of a movie to a friend?

Imagine a man reciting a poem, he learn by heart, in front of a lot of people, has he to pay rights? Obviously not, but according to this law, it would be more coherent to pay rights to the author of the poem, wouldn't it?

Moreover when someone is not bound by a contract, he can improve competition and by the way improve the welfare of society in copying and using an invention to produce goods. For instance, when internet was created by two or three firms on the Silicon Valley in order to share informations quickly, the use of this technique by other firms all over the world led to what we call now the World Wide Web. And who could say that internet is useless or is a bad thing for the society? If there were copyrights on this invention, would the world be the same today? Would the communications between people all over the world be possible?

Finally copyrights and patents lead to abuses. Today people are allowed to "copyright or patent" almost everything and that could become totally ridiculous.

Here are some of the most discutable, and bizarre to not say ridiculous examples of patents and copyrights :

w "Initiation Apparatus," U.S. Pat. No. 819,814, May 8, 1906

("harmless" way of initiating a candidate into a fraternity by

shocking him with electrodes);

w "Method of Exercising a Cat," U.S. Pat. No. 5,443,036, Aug.

22, 1995 (shining a laser light onto the floor to fascinate a cat

and cause it to chase the light);

w "Pat on the Back Apparatus," U.S. Pat. No. 4,608,967, Sep. 2,

1986 (apparatus with simulated human hand to pat the user on

the back);

w "Hyper-Light-Speed Antenna," U.S. Pat. No. 6,025,810, Feb.

15, 2000 (poking hole in another "dimension" to transmit RF

waves at faster-than-light speed, incidentally accelerating plant

growth);

w "Method and System for Placing a Purchase Order via a

Communications Network," U.S. Pat. No. 5,960,411, Sep. 28,

1999 (Amazon.com's "one-click" method for purchasing an

item on the world wide web by single mouse-click);

w "Method of Preserving the Dead," U.S. Pat. No. 748,284, Dec.

29, 1903 (preserving dead person's head in block of glass).

III - An example: Music and internet

A - The SNEP point of view

SNEP is the national trade union of the phonographic editors in France . This trade union wants to protect music rights principally against pear to pear process. Its main argue is that people buy less and less CD's and they use internet to download music freely. SNEP wants to protect the intellectual property with law, even if in the USA , the Supreme Court refused that the web access companies have to give the IP address of people, who use to downloading. Pear to pear process decreases CD's sales but the great question currently is: Is Pear to pear process a violation of property rights or competition? A lot of people think it is competition and want to legalize this process but music trade unions are totally against because they think if downloading is legalize, no one keeps on buy CD's and everybody uses internet to listen music. Finally culture decreases because there are not enough profits for artists and producers. But that is a wrong idea that everybody uses internet if downloading is free, do you think if marijuana is free everybody smokes it?

B - Legalized downloads

Nowadays, there are legalized downloads websites, which sell music with a price cheaper than the CD price. The number of this kind of site is increasing and in France in 2005, there are 600 000 legalized downloads (130 000 in 2004). Currently On-line selling represents 10% of the editor profits. Editors try to coax people that downloading is forbidden and people can pay to do that legally. A lot of people are afraid by the punishment and now use the legalized downloads websites. Competition exist between different websites and no between legalized downloads and free downloads. But that example shows us that music industry knows download is a kind of competition and try to develop a new market to resist competition. And the first problem is those editors ask some help to the law to resist on the competition.

The second problem with legalized downloads is that those sites sell only very famous music or very recent music. The main argue of major record companies is internet decreases culture but they do that too. And the price on the net is not enough cheaper compared to the CD price.

C - Free download as a new mean to develop culture

A lot of artists try to resist to the "dictatorship" of major record companies, and are agree with free downloading. In France a lot of famous artists as Mathieu Chedid (M), Benabar or Manu Chao have signed a text, which call "liberezl @ musique" to support free downloads because that is a mean to help people to access to culture. And music players, who do not be already well-known, can use that mean to become famous as Lorie or Didier Super. Moreover peer to peer is a perfect mean to advertise with very low costs. Now artists use copyleft, their music can be freely downloaded on the net and use property rights only to protect author names.

A recent opinion poll says people use free downloads for 3 reasons:

•  The price on web site and CD's shops is very high and it is not a market price, everybody can not access to the culture because it is so expensive.

•  The diversity of music on free download websites is huge; the shops sell only variety, single and very recent CD's.

•  People want to try before buying. Generally people download one song and after they choose if they buy the CD, download the CD or just keep this single on their computer.

Nowadays, sales of CD's are not really decreased, despite of major record companies argues. Figures show us that the number of single sell is decreased and single do not represent the music. And at a same time, sales of jazz and classical music are increased that is why we can ask ourselves: do major record companies not try to protect their profits and the very high prices of single?

D - Major disc editors as a lobby

Music industry is really afraid by competition with other support of music. Some of them use new process to resist competition but generally editors ask some help to the government and to the law to help them. But it is only to protect their own interests because pear to pear process decreases their profit. The argue of the decrease of culture is not a good argue because when you buy a CD, only 15% is given to the artists (singer, band and author) and 85% is the profit of producers and costs to produce. Artists are exploited by major record companies and pear to pear process is a mean to escape of this "dictatorship". Moreover those companies sell less single but the same number of CD's and create new markets with music for mobile phones and legalized downloads, their profits do not decrease. Major record companies seem like monopolies which want to choose the good price for music, and want to protect them against competition by using the law. If single are more downloaded, that is because their prices are very high.

E - Other free downloads and solutions

Nowadays, music is one of the different media you can find on the net even if it is the most famous. And there is the same problem with all the kind of media, most of them want to be protected by law but some producers try to resist competition. There are some very interesting solutions and ideas.

Some artists, in music industry, try to sell CD's with video clips or with a key to access to the artist's web site because hack a site or download a clip is more difficult and longer. Some producers want to sell CD's with text for karaoke, that is innovation and that is the best way to resist competition.

In movie industry, D.SODERBERG wants to sell his next movie on DVD and in cinema at the same time. He knows, if the movie exists on DVD, people can download it fastly on the net and they do not buy it; but he wants to show that cinema, DVD and DIVX are not the same market and it is better if consumers can choose.

In book industry, S.KING is the first author to sell his book only on the net and a lot of writers follow him. Because internet is currently the best market place and there are always people who prefer reading a "paper book" than an "e-book".

Conclusion

Concerning the "peer to peer" and the others means to download music the most important question is the following : what is today the market of music? Is it only CDs (i.e.; singles and albums) or can we consider radio and music televion channels in this market?

So the framework of the market changes and firms and people have to adapt to it, and neither patents nor copyrights can protect authors and inventors from the development of techniques and technologies wich are threatening them.

Today the actions of disk's publisher firms against free downloading are more a kind of rent- seeking than a fear of bankrupt or a collapse of authors, compositors and musicians.

By the way, originally intended to cover literary works, the concept of copyrights has been stretched so that authored "works" include computer programs, and even machine language and object code, which is more analogous to a machine part, such as a cam, than to a literary work.

The most important thing today is to let people free to contract the way they want to, in order to avoid abuse such as the "method of exercising a cat " copyright.

Otherwise one day, we will be condemned for having recited a poem in the street or related the plot of a book to a friend.

Maybe the only way to protect inventors and authors and avoid such terribly ridiculous and dangerous situations in the same time, is to redefine intellectual property in taking into account of our changing world.

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Websites:

http://www.lewrockwell.com/orig/kinsella2.html

http://www.cafehayek.com

http://www.mises.org

http://www.sacem.fr

http://www.disqueenfrance.com/snep

(1) About this topic, see Ludwig von Mises  " Epistemological Problems on Economics ", Murray Rothbard " Economistes et Charlatans ".

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