Ayn Rand and intellectual property

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Timothy Sandefur has an excellent analysis of IP law from a Randian perspective.

Rand’s argument is that intellectual property rights are natural rights, and that “[t]he government does not ‘grant’ a patent or a copyright in the sense of a gift, privilege, or favor.” Id. at 131. As a descriptive matter, of course, this is plainly false. Intellectual property was not a right at common law, and has always been regarded by the law as a mere privilege. Donaldson v. Becket, 98 Eng. Rep. 257 (H.L. 1774), accord, Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 663 (1834). But if Rand is saying that patents and copyrights ought to be regarded as natural rights, she has to make a case for it, and that case must profoundly address the most significant characteristic of intellectual property: its non-exclusivity. That is, intellectual property can be used simultaneously by more than one person at a time, and once obtained, it can never be taken away from a person. In Jefferson’s phrase, a person who lights his candle from mine illuminates himself without darkening me.

Rand fails to address this matter at all, except in one interesting passage. In that passage, she argues that intellectual property rights must be limited in time, lest they clog the flow of progress: “it would become a cumulative lien on the productivity of unborn generations, which would ultimately paralyze them,” she says, for intellectual property rights to extend to perpetuity. Rand at 131. Yet this argument counts against her proposition that intellectual property is a natural right. For one thing, I know of no other natural property right which becomes unjust merely by the passage of time, and with no intervening unjust act occurring. And if intellectual property is a natural right, then it would seem that a time limit would be an injustice, just as it would be unjust for the government to simply declare that all land titles shall expire in exactly 50 years.

Also be sure to check out Tom G. Palmer’s Are Patents and Copyrights Morally Justified?: The Philosophy of Property Rights and Ideal Objects, 13 Harv. J. L. & Pub. Pol’y 817 (1990).

Original: craschworks Please leave any comments there.