Private Property Rights
We’re all familiar with the concept of property. Property is the term for all of those things that may be owned. There are some things that can’t be owned, like people and air, but most other things are property of one kind or another. When we speak of “property rights”, we mean the rights that a person or a group has over some kind of property. At the individual level, we have “personal property.” These rights give us the ability to buy and sell, use, or simply possess some thing that we have come to own. We can even destroy it if we wish. Importantly, we can also prevent others from doing these things to our property.
Take, for example, my car. As long as I have the necessary license I can drive that car, rent it, sell it or just stick it in the back yard and let it rust. I could even tear it apart and sell the parts alone. My property rights allow me to do these actions, and they prevent you from doing any of them without my permission.
Intellectual Property (IP)
These rights cover the permissions that we have with regard to physical objects, and they’re fairly clear to us. Intellectual property is a bit more controversial. Roughly, intellectual property is the term for products of the intellect that can be owned in some sense. Some common examples are copyright and patents which give property rights to the originators over things like ideas which have been made public.
Intellectual property is different from physical property. The “thing” that one has a right to is an idea rather than something physical like a car. A company might own the patent to a vehicle’s design without being able to claim a property right to each individual car of that type. This seems sensible, but it doesn’t match the sort of property claim that we’re used to talking about. When I claim a property right to my car, it means you can’t use it. What does it mean to say that you can’t use my idea? In most cases, this means that one cannot use an idea that someone else has a copyright to in a way that creates profits. To do so would deprive the copyright holder of something they are due.
There are at least two ways in which intellectual property is fundamentally different to physical property.
1. Intellectual property is fundamentally social. IP is essentially an idea, and ideas are only useful when they are expressed in some way. Think about music, for example. If I were to have an idea which I turned into a song, then that idea is only useful to me when I make that song public. I have to perform it before anyone can appreciate it or enjoy it or pay me for it. Patented designs are like this as well. The idea is only as good as it is useful.
It’s fundamentally social in another way, as well. All of the ideas that might turn into songs or inventions are going to be based in some on upon the work of other people. Very few people invent their own musical instruments, notation, and languages for the purpose of making music. Inventions make use of the maths, sciences, and otherwise important discoveries that people before them have made. In other words, we all stand on the shoulders of giants.
2. The second difference is that intellectual goods are infinitely sharable. The difference between an idea and a car is that an unlimited number of people may possess and use an idea at the same time, while only a small number may possess and use a car at the same time. When one of us puts an idea out into the world, it can be held by any number of people without being less available to the originator. When I give you my car, I no longer have a car. When I give you an idea, we can each have it in exactly the same quantity and quality.
Intellectual property is especially vulnerable to theft and misattribution because, unlike my car, someone might be able to take credit for my ideas and inventions without my knowledge. I will notice that my car is missing because it is a physical object, and when I need to drive somewhere I will be alarmed that it is missing. Not so, my ideas. Even if I am not harmed by the misattribution of my ideas, it seems appropriate to protect them from theft.
Given these differences, we might need to have a different argument for intellectual property than we do for physical property.
Arguments for IP Protections
There are several different arguments for the protection of IPs, but we can focus on just a couple of them. Firstly, we can find a legal basis for intellectual property in the US Constitution.
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
This clause sets out the purpose of patents and copyright. It is supposed to provide an incentive for people to do this kind of work which benefits the society as a whole. The idea is that if we want new ideas it would be a good idea to protect the people who come up with them. This leads us to the argument that DeGeorge will call the “Standard Argument.”
The Standard Argument has two parts. The first part has to do with fairness and justice, and the second with a Utilitarian justification for protecting IP. In short, the argument is that the originators of an idea are the ones who have spent the time, money, and effort to come up with the idea, and they should be the ones who are given a chance to turn a profit from that idea. This protection of IP is the one with the best results for everyone because it encourages innovations by allowing the opportunity for originators to profit from their toil.
These two premises seem to lead to the conclusion that we ought, therefore, to protect intellectual property in some way. Patents and copyright are two ways of doing this. There is an ongoing debate over how IPs ought to be protected, and what sorts of punishments are appropriate in cases of intellectual property theft.
The most public cases of intellectual property theft in the recent past involved the RIAA bringing suit against individuals (notably against children) in the early 2000s. The recording industry sought fines of up to $150,000 per song illegally downloaded. This sort of figure seemed absurd to some. After all, intellectual property in the form of digital versions of songs is infinitely sharable. A 12-year old who ‘steals’ a song from the internet is not depriving anyone else from enjoying that song. They have taken a single cookie out of an infinite cookie jar. Their ‘theft’ is not depriving anyone of their copy of that song because there is an infinite supply of that song available. The RIAA responds that while there might be an infinite number of possible copies of any particular song, they are being deprived of the money they should have made for selling that song. They are the ones who are being damaged because they spent the time and money to record, promote, and distribute that song or album. The public, meanwhile sees a group of very wealthy people suing children for thousands of dollars over a 'theft' that couldn't possibly have caused thousands of dollars worth of damage. Factors like these have made huge fines difficult to swallow for many Americans. Some see them as absurd, but others see them as a reasonable response to a financial problem facing the record industry.
The paper and the pair of cases that you’re about to read takes a look at the intersection of intellectual property and pharmaceutical drugs. What should we do when there is more at stake than money?
 US Constitution Article 1, Section 8, Clause 8. http://www.senate.gov/civics/constitution_item/constitution.htm#a1_sec8