50 Are intellectual property rights “human rights”?

Posted on January 19, 2012 by

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The Stop Online Piracy Act (SOPA), also known as H.R. 3261, is a bill that was introduced in the USHR on October 26, 2011. The bill, if made law, would expand the ability of U.S. law enforcement and copyright holders to fight online trafficking in copyrighted intellectual property and  counterfeit goods.[1]

The Constitutional basis for SOPA is:  Article I,  Section 8,  Clause 8 of the  US Constitution, known as the Copyright Clause, which empowers 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.

Please note that this “exclusive Right” is not labelled “property”, like land or building, but it is coached as conditional right – it is to “promote the Progress of Science and useful Arts”. For this purpose, the author is given the exclusivity – what dumb economists like me call a “time-limited monopoly”.

“Promotion” is a public purpose. The US Constitution could have provided for a public bounty. The Government did not have the financial means, and in any case it would have been difficult to sort out the good inventions from the bad. It cleverly down-loaded the responsibility of providing the bounty on the consumer. Far from being a right, an Intellectual Property Right is an implicit tax in order to foster a public purpose.

Somewhere along the current “path-dependent outcome” the promotional purpose has been elided and the term “Intellectual Property” introduced; it was then assimilated in political discourse with Property, which is protected by the Bill of Rights[2]. Michael H. POSNER, US Assistant Secretary, Bureau of Democracy, Human Rights, and Labor, in a speech held on January 17, 2012, states: “You can’t break into a theater and steal the movie reels and you can’t steal movies online either.”

Any literalist student of the US Constitution would agree: we are dealing here with a bounty, not an absolute right. While we may approximate a fair bounty by a time-limitation, circumstances of the product may create excess.  An easy jingle may yield the author dozens of millions in a few days. Whether there is a public purpose in the jingle I leave to the reader to decide.

People sense the gross excess, do not consent, and react by capping the bounty. This is obtained by sharing the product for free – what the act calls “piracy” – how ironic! In fact it is a tax-payers’ revolt. Note that the author/performer still makes a pile – which I’ll freely grant him.

May I conclude that the current system, based as it is on extracting monopoly rents, chronically under-rewards, that is grossly fails the Constitution’s intention? R&D on diseases of the poor or rare diseases are crippled by the fact that there is no market for them.

And I may query whether the transformation of visual arts into something akin to a stock exchange, where the value of “works of art” (now protected by IPR) are traded like commodities, serves the public purpose: To promote the Progress of Science and useful Arts. But I’d sure like to profit from it. I’d gladly leave Damien HIRST my body to include in one of his art-works (his sections of a cow have made him millions), provided he retrocedes to me my share of the bounty – NOW.


[2]           For a historical as well as polemical treatment, see: Michael PERELMAN (2002): Steal this idea. Intellectual property rights and the corporate confiscation of creativity. Palgrave.