Why Libertarians Shouldn’t Be (Too) Skeptical About Intellectual Property

Libertarians are inclined to view property as best dealt with through contract. They are hostile to IP rights in general, and copyright and patent rights in particular, because these aren’t viewed as natural rights over tangible things stemming from the actions of individuals. Still these rights are defensible because they help advance human happiness in a wide range of circumstances, so that their creation under a set of general prospective rules satisfies the most exacting of social criterion. They tend to leave no one worse off than in a state of nature, and indeed tend to spread their net benefits broadly over the entire population. Differences in how the law treats both tangible and intellectual property do not signal any disintegration in the overall conception of property rights. As in all cases we should be on the lookout for strong social improvements that cannot be achieved by voluntary means. In those cases, purposive innovation on property rights, by either courts or legislatures seems appropriate. The law of intellectual property should be subject to constant analysis and review, but not to any a priori attack on the supposed inferiority of intellectual property rights to those in tangible objects.

Richard A. Epstein

Progress & Freedom Foundation

February 2006

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