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Can moral rights expire?

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Matt Rourke / AP / File

(Read caption) Thousands of counterfeit 'Rolex' watches wait to be destroyed by a rolling compactor in Philadelphia, Apr. 26. Customs and Border Protection officials smashed the bogus watches to mark the 40th anniversary of 'World Intellectual Property Day.'

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A Norwegian blogger has written what he believes to be a sweeping defense of “intellectual property” rooted in moral claims and natural rights. I always enjoy reading these pieces, if only for sport: it is interesting to see where the argument begins to fall apart, as it necessarily must. And this is because IP is a state-created right that cannot exist in purely voluntary exchange. It is a bit like a claim that the Post Office has the natural right to deliver mail: at some point in the argument for such a position, the writer will have to address the obvious reality that such a “right” cannot exist or be enforced apart from the use of bureaucracies, coercion, and the aggressive hampering of market competition.

The blogger’s hand is tipped only in the penultimate paragraph:

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The limitation of such a declaratory law is that with time a work of fiction or a patent becomes so diffused into the culture that it is impossible to avoid them, and therefore all intellectual property rights must be time limited and expire.

No further elaboration on this point, but here you see the crucial issue. It makes no sense to limit a natural right or a moral right. If IP were a moral right, it should last forever. Otherwise, it would be like saying, I have no right to kill you unless you have lived far too long for you own good. Or: you have inviolable property rights unless you own too much stuff. There is a right or there is not. To approve term limits on IP gives the game away.

This blogger defends the statutory time limit on IP on grounds that once a “work” becomes “diffused into the culture,” there is probably no longer any point to IP enforcement (at least I think that is what he is saying) but the only way this could actually happen, according to the blogger’s own theory, would be through the mass violation of the rights of the creator, who, presumably, ought to be able to carefully track and account for all instances in which his intellectual property is permitted to be used by others, which is to say, he ought to be able to control the manner in which his idea/property becomes diffuse in the first place. A real owner would never lose control of his or her property in a way that which elicit a sanguine response. This would be like a person who said, well, this used to be my house some ten years ago, but now there are so many squatters and people living here, I might as well bail out and that’s fine!

Another intriguing aspect of this diffusion argument is that if we are to use this as a standard, the time limit on IP ought to be growing ever shorter over time with the development of communication technology. Perhaps it took 5 to 10 years in the 19th century for a work to become diffuse in the culture, so IP should only last that long. But the statutory term limit keeps growing longer, not shorter. Today, statutory claims on copyright can extend to as much as 170 years, whereas with existing communication technology, an idea can become globally diffuse in a day or even in a matter of minutes. Why shouldn’t term limits on IP, then, be reduced to only a few hours?

Incidentally, the link above demonstrates the hazards of attempting to think through these issues of intellectual property from the armchair, in the same way one might consider an issue like whether the private sector can deliver mail. IP is a tricky subject that requires a great deal of thought, serious knowledge of the law, and extensive familiar with history and the economic experience of a wide range of sectors from fashion to art to software. It is not an easy subject. It is worth thinking through because do so helps firm up our understanding of a vast range of other issues.

Regardless of what anyone’s present position is on this subject, everyone can benefit from Kinsella’s class on this topic in the Mises Academy. There is no shortage of heat on this subject out there today. What we need is more light. This is what Kinsella’s class will offer everyone.

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