The November issue: IP and the moral maze

The November 2010 issue of JIPLP is now available in full to its online subscribers. The full list of contents can be viewed here, whether you are a subscriber or not. The November Editorial, "IP and the moral maze", decries the erosion of principles of morality from the criteria by which intellectual property rights are judged, while the influence of economic analysis on IP has grown. It reads as follows:

"IP and the moral maze"

Almost all of today's more senior IP practitioners, R&D businesses, entrepreneurs, and investors cut their teeth on a set of simple propositions that, if not actually axiomatic, were rarely challenged. We all knew, without any sense of doubt, that

* copying is wrong;

* using another's intellectual creation so as to obtain a gain at his expense is unfair;

* intellectual creation is entitled to legal protection in exchange for the disclosure of its intellectual content to the public;

* investors in new products and services are more confident of seeing a return on their investors when free-riders are kept at bay for a reasonable period.

These and other beliefs formed part of a credo that, rightly or wrongly, shaped the 20th century for many of us. Where this credo was not intoned, there was little or no innovation and investment was stultified.

Only 10 short years into the new millennium, one might be forgiven for imagining that a revolution had taken place not only in terms of new technologies but in terms of morality. Copyright has been undermined no less by a shift in attitude on the part of consumers than by the digital delivery of content; patents are increasingly regarded as the privilege of the greedy few, with the sector-specific moral argument in favour of access to healthcare being used as a stick with which to beat all patents, of whatever subject-matter. Within the sphere of brands we are now informed by learned reports commissioned by the European Union that counterfeiting is good for consumers, good for the economy, and good for brand owners. As for design, we are given to understand that it is a bar, an inhibition to the promotion of the fashion and clothing industries. Trade secrets, it is also suggested, have outlived their utility and should be limited in time.

It is possible that the rot set in at the point when IP rights were not actually detached from the sphere of morality but were subjected to rigorous economic analysis. The privilege of profit and the ability to exploit a market fully once one's IP rights had created it was no longer an issue of enjoyment of ownership of one's own property (which itself is recognized as a human right) but an issue of checks, balances, and social utility. You can exclusively possess and control a painting, a plot of land, or a piece of pottery—but you cannot own a market for goods or services. So for the innovator who creates a market, the question was no longer ‘how can he keep what he has created?’ but ‘how can the market, once created, be competitive?’

Is there still a place in IP for this word?

Now even economics has been pushed aside, in favour of a rule which, though articulated in lofty and respectable terms, is not one that commends itself to the morality of IP. We understand that, if copyright infringement is now so easy to commit and we all have the equipment to infringe it, we should legitimize it so that people do not feel bad about what they are doing. Likewise, since consumers are not in general confused or deceived by the most common forms of counterfeit product (CDs, DVDs, fashion items, and accessories) but indeed connive in the fakery by providing a market for it, society should tolerate such infringements rather than stigmatize them. In other words, if enough people want to do it, the law should not stop them.

It is not difficult to turn this form of reasoning, applied here to IP, so as to provide a corresponding justification for turning a blind eye to motoring speed limits, parking restrictions, fare-dodging, and tax-cheating, among other things. This is because it is a form of reasoning from which the consideration of any moral principles has been increasingly excluded.

Where, then, are the moral arguments that support IP rights, just as they support a man's right to his home, the clothes on his back, and the privacy of his personal thoughts and feelings? And where are the philosophers who are prepared to identify the moral propositions on which the IP system has hitherto been based, at least in part? Or has IP become so morally bankrupt that there none prepared to stand up and defend it?