Intellectual property, to Catholics

What ought a Catholic to think of intellectual property? I mean the class of rights including patents, copyrights, and trademarks.

You would think that this is one of those things that someone could easily look up and find ‘the official Catholic doctrine’ about, but it is not; it seems to be taken for granted in most popular sources. As a result, many opinions seem to have appeared on this subject in the minds of the public, and two of them are so terribly wrong, that I thought to write a blog post. This post will examine the two opinions that I think are awfully wrong, the one that I think is the most plausible, and some possible difficulties to its applicability.

0. Contents

1. That to respect intellectual property is a moral duty because such rights are a private property of its holder, so that to infringe upon them is a kind of theft, or vandalism
2. That to respect intellectual property is a moral duty because it is sinful to defraud a laborer of his wages, which is always done when someone infringes upon intellectual property
3. That to respect intellectual property is a moral duty because intellectual property laws, like other civil laws, are binding in conscience, and ought to be followed on pain of sin
4. Conclusion

1. That to respect intellectual property is a moral duty because such rights are a private property of its holder, so that to infringe upon them is a kind of theft, or vandalism

Two facts apparently support this opinion; first, that the name “intellectual property” seems to imply it.

This can be dealt with very quickly. It is an elementary mistake to derive the nature of something from its name, and the name in this case is applied only analogously. Every legal system distinguishes intellectual property rights from property rights, and every Catholic system of moral theology means only the latter by the word property.

Second, at least one notable modern philosopher has strongly supported such an opinion – Ayn Rand, most clearly in the following quotation:

Patents and copyrights are the legal implementation of the base of all property rights: a man’s right to the product of his mind.

Every type of productive work involves a combination of mental and physical effort: of thought and of physical action to translate that thought into a material form. The proportion of these two elements varies in different types of work. At the lowest end of the scale, the mental effort required to perform unskilled manual labor is minimal. At the other end, what the patent and copyright laws acknowledge is the paramount role of mental effort in the production of material values; these laws protect the mind’s contribution in its purest form: the origination of an idea. The subject of patents and copyrights is intellectual property. [...]

Today, patents are the special target of the collectivists’ attacks—directly and indirectly, through such issues as the proposed abolition of trademarks, brand names, etc. While the so-called “conservatives” look at those attacks indifferently or, at times, approvingly, the collectivists seem to realize that patents are the heart and core of property rights, and that once they are destroyed, the destruction of all other rights will follow automatically, as a brief postscript.

— Ayn Rand, Patents and Copyrights

I believe that Ayn Rand’s doctrine cannot be maintained by a Catholic, for three reasons. First, because it is innovative in the extreme. No one held Ayn Rand’s doctrine, or anything similar, up until around the time she came up with it; if it were part of the natural or divine law, then the consequence is that no one understood this important aspect of the law until her time, which is absurd.

Second, because there is no reason to think that “a man’s right to the product of his mind” is “the base of all property rights”. This is something that Ayn Rand simply made up, for no reason.

Third, because competing doctrines are endorsed by the Church, namely that of Thomas Aquinas, who said, in S.T., II-II, Q66, A1–2, that “the possession of external things is natural to man” because “man has a natural dominion over external things”, and that “the division of possessions is not according to the natural law, but rather arose from human agreement which belongs to positive law”. Ayn Rand’s doctrine contradicts this by giving a different base for property rights, one which is innovative besides.

2. That to respect intellectual property is a moral duty because it is sinful to defraud a laborer of his wages, which is always done when someone infringes upon intellectual property

This one is strange, but it comes up in discussions. It is said that patents and copyrights ensure that a writer, or inventor, will get the just payment for his work.

This is strange, since no one is due any payment for work which he was not hired to do. If I decide, out of my own free will, to build a public park on my private property, no one is obliged to pay me anything for having done this; they need only pay me for such things as they ask me for, such as entry or food, if I choose to charge for them. The work of building the park, which was not requested, deserves no payment.

Similarly, suppose a band were to play so loud in a concert that I can hear it from a neighboring house. I also owe no payment to that band; unlike someone who paid for a ticket, I did not ask for the band to play any music. It was once said to me that to infringe upon intellectual property is like sneaking into the concert, but, of course, someone who sneaks into the concert is infringing upon physical property, namely the land where the concert is held.

There is really nothing to be said in favor of this opinion, that I can think of at least. I will go on to the next one now.

3. That to respect intellectual property is a moral duty because intellectual property laws, like other civil laws, are binding in conscience, and ought to be followed on pain of sin

I think this one is the most likely to be correct. It is a well-known Catholic doctrine that civil law binds in conscience, and ought therefore to be followed, on pain of sin. It is worth noting that one consequence of this being the reason for the duty to respect intellectual property is that, if intellectual property laws were abolished, there would be no sin in making unlicensed copies of new artistic works or scientific inventions.

It is not obvious, however, that all intellectual property laws existing today are of such a kind as to bind in conscience. Some facts could, in theory, change this. I can think of three: first, if they were immoral laws; second, if they were abrogated by some custom; third, if they were merely penal laws. I will speak of each in turn.

Immoral laws, of course, do not bind; it would certainly be right to disobey a law commanding blasphemy. It is unlikely, however, that any current intellectual property laws are actually immoral. There seems to be no reason to consider them immoral, however prejudicial they may be. I have heard one argument that they are immoral because they make ideas into property, which ideas cannot be; but legally they generally in fact do not, despite the use of the word “intellectual property”, as I have already said.

Second, it is sometimes argued that Thomas Aquinas said that a law can be “abolished by custom”, and that since the state does not seem to prosecute some kinds of intellectual property infringement, namely the downloading of pirated movies, the law has been abolished by this new custom. I have no idea whether this is correct.

A third concept that may be brought to bear upon intellectual property laws is that of “merely penal” laws. Such laws, in Catholic moral theology, are “laws which oblige the citizen either to obey them or to accept the penalty appointed for their violation”; it is not a sin to break these laws, but it is a sin to evade punishment if caught breaking them. This seems to be how many Catholics approach copyright laws, although they have not heard of the term for it.

It is unclear, however, whether the concept of “merely penal” laws applies to any modern intellectual property laws, and one author has written a lengthy criticism of the concept. So it seems to me that, besides being the “safe” opinion, it is also the more probable opinion that intellectual property laws are not merely penal.

4. Conclusion

The conclusion is that the first two opinions I proposed to discuss are definitely wrong, and the third one may be correct, but may also, depending on the applicability of some strange conditions, not apply to particular modern laws.

Update (2021-09-18): I have written a follow-up post to this one.