Vaccine development has been one of the few bright spots in our response to the COVID-19 pandemic. However, it also brings renewed attention to the political economy and justification of intellectual property (IP). Some companies like Moderna and Gilead have publicly committed not to enforce or license patents on their pharmaceuticals during the pandemic. This is an admirable choice and we should celebrate the work these companies have done.
There is nonetheless an important distortion in discourse around IP that the pandemic makes apparent. In response to a proposal by India and South Africa to waive features of the TRIPS agreement (which defines global minimum standards for IP protections) to facilitate medical technology transfer during the pandemic, critics deemed it “theft” and a “grave injustice to [the companies’] costly and courageous efforts.” The distortion is the use of moralized language like “injury” and “theft” to defend legal rules that are, in fact, best understood as privileges justified on the basis of their consequences.
This distortion in how we think about IP comes, I think, from a conflation of norms regarding “real” property (things you can drop on your foot) and norms regarding rights in abstract objects. IP does have commonalities with rights in real property. There are similar incentive and coordination arguments for rights in real property and IP, for example. However, as James Wilson identified here, there is a vital difference between them in that IP protects rights in types of objects, while real property protects only tokens.
The type-token distinction refers to the difference between a set or class of individual entities and a member of that set or class. Consider the sentence, “they both ate a pastrami sandwich.” This is ambiguous between “they both ate one individual pastrami sandwich” ( same token) and “they each ate a sandwich of the same class (pastrami)” (same type). Property rights protect tokens rather than types. If I own a penny, that means I own one token penny rather than all the coins of that type. However, IP rights protect types of objects, or an indefinitely large number of physical tokens. This is clearest in the case of IP like patents and trademarks, where IP protects an abstract structure. It also applies to copyrights and trade secrets, but in a more limited fashion. With copyright, for example, the protection extends to a class of objects defined both by an abstract structure and a particular history. My copyright extends to copies of the original work, for example, but not to something word-for-word identical to the copyrighted work produced entirely by accident. Even if this new creation is identical to the work I copyrighted, it has the wrong causal history that excludes it from my copyright.
IP also has a number of other important differences from real property rights. Most obviously, the objects of real property are rivalrous in consumption. If I eat an apple I bought, there is one less apple for anyone else to eat. But if I make a copy of your book, the original is still available for your or anyone to read. Other differences include the fact that IP rights generally expire after a fixed period and have disclosure requirements. However, the core difference between them is the difference between protecting types and protecting tokens.
This difference creates a number of problems for the justification of IP. One is that it deepens the connection between IP and monopoly. IP protections extend to an indefinite number of token physical objects. This is because the class of objects protected by, say, a patent is defined intensionally (according to an abstract, structural description) rather than extensionally (i.e. identifying all the members of the class). There is a familiar argument in law and philosophy regarding the monopolistic element in all property rights. This element, however, is intrinsic to the operation of IP.
A second problem concerns the idea that IP protects the moral rights of creators. One feature of moral rights is that they protect an interest of a person because of its importance to the person. This is what distinguishes rights-based justifications from other kinds of justifications. It is also why we think rights protect people against being harmed. However, there is a puzzle about how violations of IP rights harm the right-holder. To put it bluntly: how could the creation of an additional token of some type be a harm to an owner of a token? Because intellectual property objects are non-rivalrous, their use by some does not diminish the ability of others to enjoy them.
Wilson identifies three ways the unauthorized creation of a token IP object might harm the holder of IP:
- The creator is harmed because she’s excluded from what she herself has created
- The creator is harmed because she’s denied control over what she has created.
- The creator is wronged by others benefiting unfairly from her creative effort.
The problem with 1) is that the creation of a new token does not exclude the creator from the abstract structure protected by the IP right. If I copy your book, then I exclude you from the paper, toner, etc. that I use, but your ownership of those real objects was never in question. With 2), the problem reflects the ambiguity in “what she has created” — does it mean a token or a type? If it means “the token object she has created,” then the same reply to 1) applies here. If it means “a type of object that she has created,” then it is simply false that unauthorized reproduction involves a harm. We do not have an interest in controlling objects by limiting others’ access to them. It is also strictly false to say that the creator of some intellectual object creates a type. Rather, she identifies a type and makes that identification public knowledge (trade secrets are obviously an exception here). Disclosure requirements, of course, also limit the creator’s control. 3) is mistaken because it misunderstands that the point of IP protection is to enlarge the domain of public knowledge. The value of cultural, scientific, and technical knowledge is precisely the fact that we don’t need to repeat the same arduous process of the original creator — in other words, that we can free-ride on the other person’s work. More generally, free-riding on others’ creative work is permissible in a wide range of contexts, such as when I enjoy holiday lights when walking downtown this time of year. This is not a harm to creators or discoverers but rather the point of a robust public discourse and public domain.
The discourse around IP and moral rights also reflects a tendency to reify legal entitlements as moral rights. Legal entitlements shape our expectations and allow us to plan our lives, which means their infringement or alteration can be highly disruptive. This is a bias we should resist, however. Modifying IP law is not like expropriating someone’s house. It is more like changing tolls rates on a public road. We should talk about IP protections as the special, contingent privileges that they are rather than fundamental moral rights.