The twentieth century was one long economic experiment, with many countries falling prey to a philosophy that private property is antithetical to the public good. For the greater public good, that philosophy held, property had to be taken from its owners and redistributed.
It became clear as we moved into the twenty-first century that those experiments failed. Property rights are now recognized as essential for economic progress. In a property rights regime, the public benefits from privately owned goods. Workers earn income and improve their situations with property and capital owned by others. They have an incentive to produce beyond what is necessary for subsistence, which leads to the creation of more capital and further economic growth.
Same Song, Second Verse
However, the twenty-first century has begun with a new twist on property rights: Is the public harmed by the private ownership of intellectual property? Given the ease with which today’s digital technology allows sampling, copying, and distribution of software, recordings, and video, do copyrights hold back innovation or new mediums of expression arising from the digital world? And if so, should intellectual property lose its protection for the benefit of all?
That is precisely what some activists and civil society organizations have been arguing, and they have managed to persuade some governments to adopt their position. Their effort has hung a cloud of suspicion over intellectual property protection and has imperiled the further implementation of beneficial intellectual property regimes in developing countries.
Fortunately, earlier and wiser voices concerned about protecting human rights were insightful enough to address the issue of intellectual property rights as well.
The U.S. Constitution: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries …” (Article 1, Section 8, Clause 8)
The American Declaration on the Rights and Duties of Man: “He likewise has the right to the protection of his moral and material interests as regards his inventions or any literary, scientific or artistic works of which he is the author.” (Article 13)
The International Covenant on Economic, Social and Cultural Rights: “The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” (Article 15, ratified by the UN General Assembly on December 16, 1966).
While everyone has the general right to benefit from innovation, those who create innovations have a specific right to the “protection” of “material interests” resulting from their own innovations. This can mean nothing other than ownership of intellectual property, despite the absence of that legal term. An intellectual property rights regime that provides the general public access to and benefits from innovative works while also protecting the ownership of those works meets the criteria of these instruments.
What about the Public Good?
There is very little tension between intellectual property protection and the dissemination of information. Intellectual property rights regimes have emerged that successfully create a balance between the rights of owners and public benefit.
For example, the public is not deprived of patented goods–in fact, it is precisely the patent that encourages the development and distribution of the patented good. In this way, patents obviously result in public benefit.
Similarly, copyright protection promotes the creation and distribution of the protected good and is time limited. But copyright is additionally subject to “fair use” limitations. While there may be differences of opinion and differences in law about what constitutes fair use, all copyright regimes recognize it.
A Tool of Human Rights
Intellectual property rights further extend other human rights, such as political speech, health care, and education. It was copyright that took publishing out of the hands of governments and monarchs and enabled the free published expression of individual authors and publishers.
Those who want to weaken intellectual property protections are tapping into a failed and discredited economic theory. Expropriation of others’ property not only undermines creation and invention, it also undermines economies and societies. This was understood well before DVDs and peer-to-peer file sharing. Protection of intellectual property is a basic human right.