In the patent pool, the firms that have invested their own resources into research-and-development still reap the benefits of that effort. Commensurately, the many-more firms out there that made zero contributions to that same R-and-D are not able to pilfer, through piracy, the specific original configurations resulting from that R-and-D. But, had the patent-hating libertarians gotten their way, the firms that invested no R-and-D
do the R-and-D.
Clearing Up What the U.S. Constitution’s Copyright Clause Means By Exclusive Right — Hint: Pay Attention to “Their Respective Writings and Discoveries”
With this understanding, we can observe the clause in the U.S. Constitution that enshrines copyrights and patents. Pertinent here, we can ascertain how the opponents of intellectual property rights mischaracterize the meaning of the clause. U.S. Congress, says the document,
is tasked “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.”
The patent-haters seize on that phrase
exclusive right and misrepresent that as a State-enforced monopoly. But here we should see that a party has an
exclusive right to what that particular party originated. Suppose you claim a plot of wilderness and improve upon it and then live on it, with the State recognizing that homestead as your private property. That would not confer upon you a State-enforced monopoly on the entire real estate market. Likewise,
points out Revolutionary Era attorney Daniel Webster, a “man’s right to his own invention ...is no more a monopoly for him to possess ...than to possess his own homestead.”
We can see that with U.S. utility patents on the mechanical pencil. Lucifer J. Most’s 1939 U.S. utility patent on his own mechanical pencil was an exclusive right on this particular configuration. Note from the table above that in the seventeen years that followed, the patent did not confer upon Mr. Most some State-enforced monopoly on mechanical pencils.
The essential phrase in the Copyright Clause is not
exclusive right but
respective writings and discoveries. Let us read the clause again, this time with Lucifer J. Most’s situation in mind: “...securing for limited times to authors and inventors the exclusive right to their
respective writings and discoveries” (emphasis added). Here,
respective means that Lucifer Most’s U.S. utility patent covers only the specifics on what he originated.
Mr. Most did not originate mechanical pencils in general, and the patent does not secure for him any exclusive right over the entire market for mechanical pencils. Nor was it secured for his predecessor in producing the overall modern and general version of the mechanical pencil that we use in the present, Charles R. Keeran in 1915. Lucifer J. Most did originate, though, his own specific arrangement of the inner workings of a mechanical pencil. Hence, the U.S. Constitution is securing for him the exclusive right over his
respective “writings and discoveries,” meaning the specific aspects he devised himself. And, thankfully, throughout our history the U.S. courts have been remarkably consistent in respecting that distinction.
Indeed, the absurdity of the libertarian accusation that intellectual property rights are a government-enforced monopoly on an industry is even more apparent when applied to copyrights than it is with utility patents. His copyrights on his
Percy Jackson series of books don’t give Rick Riordan a State-enforced monopoly on the literature market. He has a “monopoly” only on his specific
Percy Jackson prose, as he should, as he is the one who composed it.
Conclusion: The Original Intellectual Property Right Daniel Webster is apt in identifying the connection between the right to homestead and the right to patent — the former forms the basis of the latter. And this exposes yet another self-contradiction of the Rothbardians who hate intellectual property rights so much. They denounce intellectual property rights and yet
wax enthusiastically about John Locke’s discussion of how, by improving the land he has settled on, the homesteader gains proper ownership over it. Indeed, the homestead is the original intellectual property right. Karl Marx wanted to pretend that this right was all about the physical toiling. But such toiling improves the land no more than the extent to which it has been properly planned — the work of the intellect, of the mind. The homesteader has to identify the right crops suited to this environment. The homesteader has to plan properly in the irrigation.
Just as with works that are patented and copyrighted, it is through the devising of a rational plan — the proper configuration and design — that the homesteader produces, from the homestead, a net increase in economic value. And as with the patenter and copyrighter, this is a newly emergent value that had not previously existed or circulated anywhere in any society’s economy. The homesteading principle that the Rothbardians worship is the origin of the intellectual property right that these same Rothbardians try to deny.