While property is often a defining topic in the centre right, in some cases, it also divides free marketeers and libertarians. This is most clearly manifested by the rivalrous debates on (the non-rivalrous) intellectual property. The Adam Smith Institute’s contribution is the paper ‘Patently Good’ by Ben Southwood which astutely outlines the liberal case for intellectual property.
The most ardent anti-intellectual property regulation ideologues are often driven by the premise that ownership derives from ‘mixing one’s labour’ with the land (homesteading). The argument goes, 'ideas are in essence free goods and, therefore, common property', in this context common property is equated not with collective ownership but with unrestricted access.
Thus if intellectual property is given the same protection under the law as tangible property (at least in principle) it binds all third parties thereby, preventing others from using their property. So, it is a violation of property rights based on the idea that one cannot have a right to the value of one’s property, only its physical integrity.
The issue with this line of reasoning is that the premise of this kind of ownership sounds awfully like the labour theory of value. Which means it sounds awfully wrong. Ownership does not and ought not to arise from one’s material relation to a good or the labour they put into its creation. If it was, we’d be having workers co-operatives left, right and centre. Did someone say proletariat revolution?
Property ownership arises from intersubjective claims on a good such as land. This is evident by the history behind English common law which was shaped by the feudal system of property where all land theoretically belonged to the monarch. Ultimately, property was indivisible in theory but it had several owners and could be bought and sold without altering the property itself. This led to a system which allowed intangible entities such as copyrights and patents to be recognised as forms of property today.
While the idea of ‘property’ is not malleable or an empty vessel it is the end purpose that matters. Its sole purpose is to make lives more prosperous by excluding others rather than being a static bundle of incidents of ownership, thus politics based on ‘public interest’ is not entirely vacuous. This is supported by the consensus that as long as property rights are ‘exclusive, universal, and transferable, they will form the basis of free markets leading to ‘socially optimal outcomes in the aggregate’.
When this purpose of property rights (which works pretty well) becomes blurred, it becomes open to slippery slopes by the political class.
Nonetheless, how do we know what is ‘socially optimal’? First, it is important to note, new ideas are usually great; the total benefit to society of an extra pound of research and development is four or more times the benefit to the firm. But how do we know how much patent strength is most conducive for innovation?
Let me present, your new sick obsession, the Tabarokk curve:
Here, it is important to distinguish between barriers to entry and costs to entry. The former generally discourages innovation while the latter allows economic rents to be reaped. Patents are not strictly a barrier to entry, for a number of reasons.
In medical research, patents provide an incentive to create and trial drugs which usually take an extended period of time. However, paradoxically, such laws often lead to a ‘tragedy of the anticommmons’ as discovered in biomedical research ‘more intellectual property rights may lead to paradoxically fewer useful products for improving human health’.
This is why the Tabarokk curve is a curve and not a straight line. Whilst restricting patents would cause firms to lose some of their monopoly rights, they would also gain the opportunity to use the innovations of others. Furthermore, without patents or copyrights, firms would have an incentive to be secretive and keep crucial information from the scientific and research community, inhibiting further research.
Why not use prizes to incentivise innovation? Well, empirical evidence reveals that they are unsystematic and unpredictable and since they are ex ante rewards, they did not correlate with how useful or popular an invention or innovation was. This proposal seems more motivated by dogma than evidence.
Property, for economists, is too normative and for politicians, it sullies their election victory. It isn’t the sexiest of topics. Nonetheless, it is not a black and white issue. Intellectual property laws, like all laws, exist to be conducive to a prosperous society and they should not be shunned under the pretense of some arbitrary libertarian creed.