In the landmark English case Miller v. Taylor (1769), the inherentrights of authors to control what they produce, independent of statuteor law, was affirmed. While this case was later overruled inDonaldson v. Becket (1774), the practice of recognizing therights of authors had begun. Other European countries, includingBelgium, Holland, Italy, and Switzerland, followed the example set byEngland (Bugbee, 1967). Various more recent internationaltreaties like the Berne Convention treaty and the TRIPS agreement haveexpanded the geographic scope of intellectual property protection toinclude most of the globe (Moore 2001).
As a modern workaround for the first sale rule, many online contentproviders, rather than selling a copy of a work, simply offer licensingagreements (through click-wrap, shrink-wrap, etc.) that allow onlyspecific uses of protected content. These approaches to protectingintellectual works are relatively new and seemingly build upon thecopyright systems already in place. For example, by usinglicensing agreements to guarantee different levels of downstreamaccess, the Creative Commons and Copyleft models seek to expand thecommons of thought and expression (Stallman 1997; Lessig 2004).An owner may allow others to build upon a protected work provided thatthe “new” work is similarly accessible or usable.
Intellectual property is generally characterized as non-physicalproperty that is the product of original thought. Typically, rights donot surround the abstract non-physical entity; rather, intellectualproperty rights surround the control of physical manifestations orexpressions of ideas. Intellectual property law protects acontent-creator's interest in her ideas by assigning and enforcinglegal rights to produce and control physical instantiations of thoseideas.
One of the first known references to intellectual propertyprotection dates from 500 B.C.E., when chefs in the Greek colony ofSybaris were granted year-long monopolies for creating particularculinary delights. There are at least three other notablereferences to intellectual property in ancient times—thesecases are cited in Bruce Bugbee's formidable work The Genesis ofAmerican Patent and Copyright Law (Bugbee 1967). In thefirst case, Vitruvius (257–180 B.C.E.) is said to have revealedintellectual property theft during a literary contest inAlexandria. While serving as judge in the contest, Vitruviusexposed the false poets who were then tried, convicted, and disgracedfor stealing the words and phrases of others.
The domain or subject matter of patent law is the invention anddiscovery of new and useful processes, machines, articles ofmanufacture, or compositions of matter. There are three types ofpatents recognized by patent law: utility patents, design patents, andplant patents. Utility patents protect any new, useful, and nonobviousprocess, machine, article of manufacture, or composition of matter, aswell as any new and useful improvement thereof. Design patents protectany new, original, and ornamental design for an article ofmanufacture. Finally, the subject matter of a plant patent is any newvariety of plant. Patent protection is the strongest form ofintellectual property protection, in that a twenty-year exclusivemonopoly is granted to the owner over any expression or implementationof the protected work (35 U.S.C. §101 (1988) and 35U.S.C. §154(a)(2)).
Second, even if it could be established that individuals own or havemoral claims to their personality, it does not automatically followthat such claims are expanded when personalities become infused intangible or intangible works. Rather than establishing propertyclaims to such works, perhaps we should view this as an abandonment ofpersonality—similar to the sloughing off of hair and skincells. Moreover, misrepresenting an intellectual work (assumingthere are no moral rights to these expressions) might change theperception of an author's personality, but it would not in factchange their personality.
Personality theorists such as Hegel maintain that individuals havemoral claims to their own talents, feelings, character traits, andexperiences. We are self-owners in this sense. Control over physicaland intellectual objects is essential for self-actualization—byexpanding our selves outward beyond our own minds and mixing theseselves with tangible and intangible items, we both define ourselvesand obtain control over our goals and projects. For Hegel, theexternal actualization of the human will requires property (Hegel,1821). Property rights are important in two ways according to thisview. First, by controlling and manipulating objects, both tangibleand intangible, our will takes form in the world and we obtain ameasure of freedom. Individuals may use their physical andintellectual property rights, for example, to shield their privatelives from public scrutiny and to facilitate life-long projectpursuit. Second, in some cases our personality becomes fused with anobject—thus moral claims to control feelings, character traits,and experiences may be expanded to intangible works (Humboldt, 1792;Kohler, 1969).
Third, assuming that moral claims to personality could be expandedto tangible or intangible items, we would still need an argumentjustifying property rights. Personality-based moral claims maywarrant nothing more than use rights or prohibitions againstalteration. Finally, there are many intellectual innovations inwhich there is no evidence of a creator's personality—alist of customers or a new safety-pin design, for instance (Hughes1988). Given these challenges, personality-based theories may notprovide a strong moral foundation for legal systems of intellectualproperty.
Even if we acknowledge the force of these objections, there does seemto be something intuitively appealing about personality-based theoriesof intellectual property rights (Moore 2008). Suppose, forexample, that Mr. Friday buys a painting at a garage sale—along-lost Crusoe original. Friday takes the painting home andalters the painting with a marker, drawing horns and mustaches on thefigures in the painting. The additions are so clever and fit sonicely into the painting that Friday hangs it in a window on a busystreet. There are at least two ethical worries to consider inthis case. First, the alterations by Friday may cause unjustifiedeconomic damage to Crusoe. Second, and independent of theeconomic considerations, Friday's actions may damageCrusoe's reputation. The integrity of the painting has beenviolated without the consent of the author, perhaps causing long-termdamage to his reputation and community standing. If these claimsare sensible, then it appears that we are acknowledgingpersonality-based moral “strings” attaching to certainintellectual works. By producing intellectual works, authors andinventors put themselves on display, so-to-speak, and incur certainrisks. Intellectual property rights afford authors and inventorsa measure of control over this risk. To put the point a differentway, it is the moral claims that attach to personality, reputation, andthe physical embodiments of these individual goods that justify legalrules covering damage to reputation and certain sorts of economiclosses.
Moreover, personality-based theories of intellectual property oftenappeal to other moral considerations. Hegel'spersonality-based justification of intellectual property rightsincluded an incentive-based component as well—he asserts thatprotecting the sciences promotes them, benefiting society (Hegel,1821). Perhaps the best way to protect these intuitivelyattractive personality-based claims to intangible works is to adopt amore comprehensive system designed to promote progress and socialutility.
In terms of “justification,” modern Anglo-American systemsof intellectual property are typically modeled as incentive-based andutilitarian (Oppenheim 1951; Machlup 1962; Boonin 1989; Hettinger1989; Mackaay 1990; Coskery 1993; Palmer 1997; Moore 2001,2003). On this view, a necessary condition for promoting thecreation of valuable intellectual works is granting limited rights ofownership to authors and inventors. Absent certain guarantees,authors and inventors might not engage in producing intellectualproperty. Thus control is granted to authors and inventors ofintellectual property, because granting such control providesincentives necessary for social progress. Although success is notensured by granting these rights, failure is inevitable if those whoincur no investment costs can seize and reproduce the intellectualeffort of others (Moore 2001, 2003). Adopting systems of protectionlike copyright, patent, and trade secret yields an optimal amount ofintellectual works being produced, and a corresponding optimal amountof social utility. Coupled with the theoretical claim thatsociety ought to maximize social utility, we arrive at a simple yetpowerful argument for the protection of intellectual propertyrights.