Re: Of heads and hands

Steven D. Jamar <sjamar[_at_]law.howard.edu> wrote:
>
> Edward Barrow <edward[_at_]plato32.demon.co.uk> wrote:
> >
> > From the European perspective, it seems that the argument is
> > somewhat distorted in the US by the (purely economic) constitutional
> > justification for intellectual property. There is a much deeper
> > justification in terms of human rights: I have the right to things
> > I make with my hands, and so should I have the right to things that I
> > make with my head.
>
> The persistance of this extraordinarily weak analogy, and its kin,
> continues to surprise me. At the outset let me be clear on where I
> stand on the substantive point Mr. Barrow raises: I think viewing
> intellectual property rights from a purely economic perspective is
> anemic and inappropriate as well.
>
> But, the analogy offered in support is so lame - indeed, if it were
> carried out at all into the field of intellectual property could have
> just the opposite results intended by those who make it.
>
> I make a chair. I keep or sell the chair. The work of my hands, the
> chair, if I sell it, is gone. And anyone anywhere can make another
> chair just like it. Anyone can copy it. I have no property rights in
> it any longer. Is this what we want for intellectual property?
>
> I write a book. I sell the book. And now anyone anwhere can copy it?
> Make another just like it?
>
> Do we really want to treat intellectual property the same?
>
> No. IP *is* different from tangible personal property and from
> intangible personal property (drafts, contracts, etc.) and from real
> property. And those differences must be taken into account in figuring
> out just what those rights are that one should have in the products of
> the mind.
>
> So it may be true to say "I have the right to things I make with my
> hands, and so should I have the right to things that I make with my
> head." But that misses the essential problem of deciding what the nature
> and extent of those rights are.

The analogy breaks down if one attempts to use it to derive how intellectual property laws should protect the products of the head. That is not, however, the point I made: I was pointing out that it is valid as a justification of the existence, rather than necessarily the nature of intellectual property laws. Individual endeavour, whether with head or hand, justifies the property right. The nature of the property right depends on the nature of the thing, and the things I make with my head are fundamentally different from the things I make with my hands.

-- 
Edward Barrow
edward[_at_]plato32.demon.co.uk