The debate about the justification of intellectual property rights is as longstanding as these rights have been implemented under the jurisdictions of Western societies. Over time, three classical justifications have been developed, which are often used in combination to argue in favour of intellectual property rights. One characteristic of these rights is that they grant monopoly rights for the economic exploitation of a creative work or an invention for a certain time period. But interestingly, it seems to be clear, even for the strongest proponent of such monopoly rights, that some restrictions to the execution of intellectual property rights have to be set. In this part I will give a short overview of these classical justifications and their widely accepted restrictions in modern societies. We have to examine these justifications partly to set the focus of this work and partly to illustrate the challenges each justification faces even in its pure form, not to mention in the combinations in which they are often used.

Justification by natural law

The most common and most important justification starts with Locke’s natural law justification for appropriation of worldly resources. Locke starts with his important claim for self-ownership, from which he concludes that a person not only owns himself, but also the results of his work, as long as he leaves enough and as good for others (Locke 2005 [1690]: Chapter V). The concept of self-ownership and the just appropriation of natural resources is challenged by many egalitarian philosophers (e.g. Cohen 1995) and in libertarian philosophy it is disputed whether self-ownership can be conceived of as compatible with the idea that natural resources should be distributed in some egalitarian way (Vallentyne 2000). I will not question the self-ownership thesis itself in this work, but will show that even if we rely on it, we cannot derive any intellectual property rights from it. Locke asserts that the intermingling of the self-owner’s labour with natural resources makes the result of this work his property. And even if this ‘mixing’ metaphor has generated a lot of critics, it has remained one of the most-used arguments for the justification of the appropriation of natural resources and the results of creative processes.^[1] The natural law argument for intellectual property then states that a creative work is the result of the author’s labour, therefore he is the only owner and the one who deserves to benefit from it exclusively.

If we want to challenge the natural law justification while holding the self-ownership thesis to be true, we could try to show that the Lockean proviso, which requires the appropriator to take only as much as leaves enough for others, can be used to challenge intellectual property rights because with monopoly rights, there is nothing left for others. I will not do so in this essay.^[2] I will rather question in Chapter Three the assumption that creative works or inventions are primarily the results of the creator’s or inventor’s labour and that therefore, the results should be attributed to him alone. But before this I will show, with the help of John Christman’s distinction between income rights and control rights, that there is no logical connection between the amount of labour one has put into a piece of work and the potential surplus he may generate in the market. In other words, one can hold that human agents are still full self-owners even if there are no intellectual property rights granted to them, as these mo­­no­­po­­ly rights are neither bound to their self-ownership nor to their labour, but simply provide them a privilege to reap a surplus from a market. Self-ownership is not affected if a society does not grant intellectual property rights to its members. Self-owners still fully own themselves even without intellectual property rights, as one cannot say that one is forced to do something against his will without these rights. He can decide whether or not to work on a piece of art or on an invention freely, and he can further use his and others’ work freely to do whatever he wants. He can create new physical objects for example, for which he will be granted all property rights as with any other object. He can create services based on his and all other creative works or inventions he knows about. We will come back to this aspect in Chapters Two and Four.

Utilitarian justification

Another important justification is the utilitarian or consequentialist argument for intellectual property rights. It asserts that even if the natural law argument can be challenged, it is still the case that without the monetary incentives which come with the monopoly rights from intellectual property, rational agents would not produce creative works in the same amount as with these advantages. The more creative works are produced, the better for any society. Therefore if monopoly rights can increase the amount of creative works, they are justified. The U.S. Constitution, which includes a special clause for copyright and patent law legitimation, is a good example of how deeply embedded this view actually is, as it empowers the United States Congress ‘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.’^[3] This utilitarian justification is also sometimes used in public discussions of intellectual property rights to construct a moral entitlement (Waldron, 1992:851). For economic reasons we have to give rewards in the form of monopoly rights to authors and inventors, as the utilitarian argument says. But rewards are usually considered to be given to those who have deserved them; therefore authors and inventors deserve their monopoly rights. This argument is confusing indeed, as it connects an economic with a moral statement, but it is very common in public political debates about intellectual property rights.

The premise in the utilitarian arguments, that creative or scientific works need exclusive exploitation rights to bring them into existence, is in fact an empirical assertion and there is much evidence that it is false. Open source software and many other open knowledge movements, the fashion business, and the rich heritage of traditional culture all over the world are just three examples where mankind has generated a huge creative output without the promise of exclusive exploitation rights. But, as proponents of intellectual property rights would say, it is not a question of whether creative work would happen without these rights, but that less creative output would be the result. We will discuss these considerations in Chapter Four of this paper when we talk about the just society with intellectual commons.

Justification by personality rights

In continental Europe, copyright law contains more than just economic aspects such as the exclusive right to the exploitation of the work.^[4] In France these additional rights are called ‘le droit d’auteur’ and in Germany they talk about ‘Urheberpersönlichkeitsrechte.’ The author in France and the person in Germany are the focus of these rights, not just the ‘copy’ of the work. These rights, which are called ‘moral rights’ in international copyright law, aim to protect the personal rather than simply the economic interests of an author. They include the right of attribution, the right of integrity, the right of disclosure and the right of withdrawal. These rights are said to be justified because creative works are ‘almost universally understood to be an extension of the author’s personhood’ (Rigamonti 2006:355-356), hence the name personality rights justification.^[5]

The personality rights justification derives mainly from the works of Kant and Hegel,^[6] but for the sake of simplicity I will focus on Kant in this work. For Kant, copyright for books has no primary connection to the work but to the author’s person, because what is written are the thoughts owned by the author, and they cannot be taken by someone else:

“This right of the author is, however, not a right to the object, that is, to the copy (for its owner is certainly entitled to, say, burn it in front of the author); rather, it is an innate right, invested in his own person, entitling him to prevent anyone else from presenting him as speaking to the public without his consent – a consent which cannot be taken for granted by any means, since he has already conceded it to someone [to his publisher].” (Kant 2014 [1785])

For Kant the words and thoughts of a person are a fundamental part of his personality and therefore it seems obvious to him that they are owned exclusively by the author. In his essay ‘Answering the Question: What is Enlightenment?’ we can see that his concern about the authorship of written words is not the ownership of the copy but the fact that writing is using one’s reason in public: “By the public use of one’s reason I understand the use which a person makes of it as a scholar before the reading public” (Kant 1963 [1784]). This helps us to understand why he has a different view on other works of art, like paintings and sculptures, where everyone, according to Kant, is allowed to make copies and bring them into the market. Because these kinds of works are not the creator’s ‘Rede’ (opera),

“A work of art, on the other hand, since it is an object, may be copied and re-casted from a copy of it, and the copies thus made of it may be publicly circulated without requiring the consent of the author of the original or of those whom the latter used as the executors of his ideas.” (Kant 2014 [1785])

So Kant’s argument against the nonconsensual reprinting of books cannot be seen as a general argument for personality rights for creators of all kinds. His concern is that thinking is what constitutes a person and speaking is the articulation of one’s own thoughts, and writing is nothing other than speaking to the reading public. To paint or compose a piece of music is not making public use of one’s reason. It is the reasoning citizen he has in mind, not the artist. Kant does not argue for intellectual property as such, but for the right of the author to protect his speech, his name and his person. Kant’s account has been very influential in the creation of so-called ‘moral rights’ in copyright law and it is used to assert that a piece of work is also to be understood as an integral part of the creator’s personality. But as we will discover in Chapter Three, a creative work is more accurately the result of a collective process rather than the effort of a single individual, and therefore it cannot be claimed as an extension of the personhood of a supposed individual creator.

Justifications for intellectual property rights restrictions

When we read the arguments for intellectual property rights above, it seems rather strange that we also have restrictions such as “fair use” for these rights in most legal frameworks for intellectual property rights. As we have seen, it looks like all these arguments favour an absoluteness of such monopoly rights. The creator has deserved them, and they are good for the prosperity of all. So why, then, have we implemented restrictions in these intellectual property rights? The reason for these restrictions is that if they did not exist, the creative process would come to an end, which is also a clue that its collective aspects are important. If intellectual property rights were interpreted as absolute rights, it is hard to imagine how innovation would happen. Imitation and copying are the basis for cultural evolution and tradition (Blackmore 1999:23ff). If the first person who created a roof had thereby obtained never ending exclusive rights to his construction, we might still be living in caves. If human beings were not allowed to tell each other stories about Zeus, Odysseus and other mythological heroes, like we are nowadays not allowed to tell stories about Luke Skywalker, Superman, Harry Potter and all the other heroes of our time, we would miss a huge part of our cultural heritage. Yes, we are still allowed to sit together around a fire and tell a story about Spider-Man, but this is not how storytelling as a cultural habit works today. In the digital age we tell stories with online videos, with blog posts or other social media activities. They are private in the sense that they are generally seen by just a few persons from the social network of the storyteller. But they are at the same time publicly available for potentially millions of viewers, which is why the rights holders think such ways of storytelling must not be allowed without monetary compensation.

All countries with intellectual property laws have included restrictions to the intellectual property rights, such as that after a period of time, a piece of creative work will become part of the public domain, that a patent only lasts for a certain number of years, or that academic libraries are allowed to make copies for their staff and students, and so on. The justification for these restrictions is based on utilitarian or consequentialist grounds. As there is a public interest in the dissemination of ideas and in innovation and creativity, private intellectual property rights need to be constrained. The fact that we need these restrictions gives a hint, that there could be something wrong with the absoluteness with which the classical justifications for intellectual property rights are usually defended. I will not further discuss the justification for these restrictions here; as I argue for the abolition of intellectual property rights, such restrictions would also be obsolete.

I have given a short overview in this first chapter of how intellectual property rights are usually justified, and where in this essay these justifications are challenged. We will start in the next chapter with the natural law justification, by analysing intellectual property with the help of John Christman’s distinction between control rights and income rights.