Fashion Has No Owner

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~ Tom Bell, Copy Fighting

Let’s look at an example of this. Suppose that George occupies and works an unowned plot of land. He becomes the owner of that plot of land. Richard, who lives across the country and has never even stepped on George’s land, conceives of the idea of crop irrigation. The logic behind intellectual property would suggest that Richard, due to his new invention, now acquires a partial property right over George’s plot of land; he obtains the right to prevent George from applying this new technique on his own land. Regarding the application of crop irrigation on George’s land, he is no longer the full owner of it anymore, since he must now obtain Richard’s permission. Richard can block George (and every land owner) from applying his idea even though Richard was not the first occupier (homesteader) of every piece of land over which he now claims control. Is the exercising of this blocking not an invasion of George’s land by Richard since the latter prevents the former from doing whatever he wants with his homesteaded land?

"[B]y finding a new way to use his own property (recipe), the IP creator instantly, magically becomes a partial owner of others’ property. He has some say over how third parties can use their property. IP rights change the status quo by redistributing property from individuals of one class (tangible -property owners) to individuals of another (authors and inventors)."

Many people intuitively claim that we have the right to exclusively enjoy the fruit of our intellectual creativity. Intellectual property is seen as a mechanism to ensure a fair reward for our creative efforts. However, we do not homestead things by merely making an effort but rather because we first use or occupy it or receive it voluntarily from someone else. It is true that efforts and merit are closely linked to homesteading and wealth but this is not a rigorous explanation as to why we become owners. When we win the lottery we are legitimately enriched yet no one can say that such large amounts of money were the result of our effort. When we inherit real estate or money, we cannot say that this property becomes ours because we have made the effort to obtain it and thus we deserve it. When we receive a gift we become the owners of the gift, but effort had nothing to do with it.

On the other hand, sometimes we work arduously and do not receive the desired reward. Life is filled with unrewarded effort. We always try to obtain what we think we deserve, but we cannot say that it is illegitimate not to obtain it every time. Therefore, it is not true that property is the reward of our effort. It can be, and in most cases it is (as is the case in the market), but it is not a simple effort that turns us into property owners. It is through homesteading and free trade that we become owners and any interference over the use of our own property is tantamount to aggression. Authors obviously have a right to profit from their creations and to try to impede that others profit from them, but only through non-aggressive means, means that do not violate the rights of others over their respective property.

In the case of fashion, why is it illegitimate that, after seeing a dress in a catwalk or on a store display, we later reproduce it with our own fabric? Whose rights do we infringe when we apply the information in our mind on our property? As Roderick Long points out, we can only have a right to that which we can control (because “property” means a “right to control”), and we cannot control an idea that resides in the minds of others. An idea, of course, can be kept secret (as is the case with trade secrets), but once it has been made public, a right to its exclusive control cannot be coherently claimed, because that idea is now being “controlled” by anyone who has internalized it.

"While each individual innovator may earn more revenue from innovating if he has an intellectual monopoly, he also faces a higher cost of innovating: he must pay off all those other monopolists owning rights to existing innovations. Indeed, in the extreme case when each new innovation requires the use of lots of previous ideas, the presence of intellectual monopoly may bring innovation to a screeching halt."

"Research expenditures are therefore overstimulated in the early stages before anyone has a patent, and they are unduly restricted in the period after the patent is received. In addition, some inventions are considered patentable, while others are not. The patent system then has the further effect of artificially stimulating research expenditures in the patentable areas, while artificially restricting research in the nonpatentable areas."

Albert Esplugas [send him mail] studies Audiovisual Communication. He is a founding member of the Spanish libertarian think tank Instituto Juan de Mariana and a contributor of the libertarian website Liberalismo.org. You can read his articles here and here. Manuel Lora [send him mail] works at Cornell University as a TV and multimedia producer. Visit his blog.

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