Follow-up on intellectual property, to Catholics

Since making my post on intellectual property, I have learned a couple of things. That post is still mostly accurate, so this post will assume you have read it and make a few short corrections.

Intellectual property as a natural right

Regarding the first part, I may have been too quick to suppose that the idea that there is a natural right to intellectual property, construed as being of the same kind as the right to private property, is innovative. I have spoken with Brian Besong about the post, and he told me that Francisco Suárez had developed similar ideas as part of his defense of probabilism; he also seemed quite sure that there must have been even earlier precedents in history. That may be; at the time of the post, it was hard for me to find research materials on the topic, and it still is. No concept of intellectual property was mentioned in connection with any ancient or medieval discussion of property that I have looked into, though. If there were examples, besides, I doubt that they had any more reason than Ayn Rand to affirm the doctrine.

On the other hand, back when I wrote the post, I had no opinion on the fundamental purpose of private property. Now, I am strongly convinced that individual appropriation only serves, fundamentally, the purpose of preventing action conflicts, which happen because one same material thing cannot be used for two different purposes at the same time. Now, since it is impossible for there to be an action conflict about ideas, it makes no sense for them to be individually appropriated – if they are property in any sense, they are, by right, common property, as all things, originally, are. I had also discussed this principle with Dr. Besong, but I do not find any of our discussion worth relaying here.

Intellectual property laws are not laws

Finally, I have an addition to the third part. There is another way in which intellectual property laws, taken as civil laws, may be thought to be null and void. It turns out that Thomas says that all laws, by nature, are intrinsically ordered to the common good. So, if intellectual property laws are not intrinsically so ordered – regardless of the intentions of the lawgivers – they do not have the nature of law. Which is to say, they are actually no laws at all, and cannot bind in conscience. I believe that this fact is demonstrable in two different ways.

First demonstration

Thomas says, regarding the effects of law:

The precepts of law are concerned with human acts, in which the law directs, as stated above. Again there are three kinds of human acts: for, as stated above, some acts are good generically, viz. acts of virtue; and in respect of these the act of the law is a precept or command, for “the law commands all acts of virtue” (Ethic. v, 1). Some acts are evil generically, viz. acts of vice, and in respect of these the law forbids. Some acts are generically indifferent, and in respect of these the law permits; and all acts that are either not distinctly good or not distinctly bad may be called indifferent. And it is the fear of punishment that law makes use of in order to ensure obedience: in which respect punishment is an effect of law.

In view of the nature of law, as explained before, it seems that a law must treat these kinds of acts in these ways in order to be law; a law which commanded evil, or forbade good, would not be law. Now, what intellectual property laws have in common with each other is, that they grant the IP rights-holder the authority to freely permit or proscribe (by means of licensing or not) the production of objects embodying the productive idea in question. But production is, generically, a good action. It follows that the enforcement of this authority is always calculated to forbid a good action, which is contrary to the nature of law.

Second demonstration

Just as goodness in general is rightly divided between the virtuous, the pleasant, and the useful – with this last one existing only for the sake of the other two – I believe that the common good is rightly divided into the achievement of virtue by the populace, as conceived of by the moralists, and the general welfare as conceived of by the economists.

Now, intellectual property laws do not promote virtue. There is no reason to think they do, unless one were to hold the implausible opinion that such laws protect a natural right.

Such laws are not conducive to the general welfare either, and are in fact deleterious to it. The argument from the first demonstration also holds in economics; furthermore, economists have developed their own proofs of this proposition. One is seen in this paper, written from an Austrian School perspective; a more elaborate argument is made by this book, which is written from a neoclassical point-of-view. For these reasons, we have scientific certainty that these laws are, on balance, destructive of welfare.

Since intellectual property laws are not ordered either to virtue or to the general welfare, which are the two parts of the common good, these so-called laws are not ordered to the common good at all. Which means that they lack the nature of law, and so cannot bind in conscience.