This essay was originally published in the May 1964 issue of The Objectivist Newsletter and later anthologized in Capitalism: The Unknown Ideal (1966 and 1967).
Patents and copyrights are the legal implementation of the base of all property rights: a man’s right to the product of his mind.
Every type of productive work involves a combination of mental and physical effort: of thought and of physical action to translate that thought into a material form. The proportion of these two elements varies in different types of work. At the lowest end of the scale, the mental effort required to perform unskilled manual labor is minimal. At the other end, what the patent and copyright laws acknowledge is the paramount role of mental effort in the production of material values; these laws protect the mind’s contribution in its purest form: the origination of an idea. The subject of patents and copyrights is intellectual property.
An idea as such cannot be protected until it has been given a material form. An invention has to be embodied in a physical model before it can be patented; a story has to be written or printed. But what the patent or copyright protects is not the physical object as such, but the idea which it embodies. By forbidding an unauthorized reproduction of the object, the law declares, in effect, that the physical labor of copying is not the source of the object’s value, that that value is created by the originator of the idea and may not be used without his consent; thus the law establishes the property right of a mind to that which it has brought into existence.
It is important to note, in this connection, that a discovery cannot be patented, only an invention. A scientific or philosophical discovery, which identifies a law of nature, a principle or a fact of reality not previously known, cannot be the exclusive property of the discoverer because: (a) he did not create it, and (b) if he cares to make his discovery public, claiming it to be true, he cannot demand that men continue to pursue or practice falsehoods except by his permission. He can copyright the book in which he presents his discovery and he can demand that his authorship of the discovery be acknowledged, that no other man appropriate or plagiarize the credit for it — but he cannot copyright theoretical knowledge. Patents and copyrights pertain only to the practical application of knowledge, to the creation of a specific object which did not exist in nature — an object which, in the case of patents, may never have existed without its particular originator; and in the case of copyrights, would never have existed.
The right to intellectual property cannot be exercised in perpetuity. Intellectual property represents a claim, not on material objects, but on the idea they embody, which means: not merely on existing wealth, but on wealth yet to be produced — a claim to payment for the inventor’s or author’s work. No debt can be extended into infinity.
Material property represents a static amount of wealth already produced. It can be left to heirs, but it cannot remain in their effortless possession in perpetuity: the heirs can consume it or must earn its continued possession by their own productive work. The greater the value of the property, the greater the effort demanded of the heir. In a free, competitive society, no one could long retain the ownership of a factory or of a tract of land without exercising a commensurate effort.
But intellectual property cannot be consumed. If it were held in perpetuity, it would lead to the opposite of the very principle on which it is based: it would lead, not to the earned reward of achievement, but to the unearned support of parasitism. It would become a cumulative lien on the production of unborn generations, which would ultimately paralyze them. Consider what would happen if, in producing an automobile, we had to pay royalties to the descendants of all the inventors involved, starting with the inventor of the wheel and on up. Apart from the impossibility of keeping such records, consider the accidental status of such descendants and the unreality of their unearned claims.
The inheritance of material property represents a dynamic claim on a static amount of wealth; the inheritance of intellectual property represents a static claim on a dynamic process of production.
Intellectual achievement, in fact, cannot be transferred, just as intelligence, ability, or any other personal virtue cannot be transferred. All that can be transferred is the material results of an achievement, in the form of actually produced wealth. By the very nature of the right on which intellectual property is based — a man’s right to the product of his mind — that right ends with him. He cannot dispose of that which he cannot know or judge: the yet-unproduced, indirect, potential results of his achievement four generations — or four centuries — later.
It is in this issue that our somewhat collectivistic terminology might be misleading: on the expiration of a patent or copyright, the intellectual property involved does not become “public property” (though it is labeled as “in the public domain”); it ceases to exist qua property. And if the invention or the book continues to be manufactured, the benefit of that former property does not go to the “public,” it goes to the only rightful heirs: to the producers, to those who exercise the effort of embodying that idea in new material forms and thus keeping it alive.
In the case of copyrights, the most rational solution is Great Britain’s Copyright Act of 1911, which established the copyright of books, paintings, movies, etc., for the lifetime of the author and fifty years thereafter.
In the case of patents, the issue is much more complex. A patented invention often tends to hamper or restrict further research and development in a given area of science. Many patents cover overlapping areas. The difficulty lies in defining the inventor’s specific rights without including more than he can properly claim; in the form of indirect consequences or yet-undiscovered implications. A lifetime patent could become an unjustifiable barrier to the development of knowledge beyond the inventor’s potential power or actual achievement. The legal problem is to set a time limit which would secure for the inventor the fullest possible benefit of his invention without infringing the right of others to pursue independent research. As in many other legal issues, that time limit has to be determined by the principle of defining and protecting all the individual rights involved.
As an objection to the patent laws, some people cite the fact that two inventors may work independently for years on the same invention, but one will beat the other to the patent office by an hour or a day and will acquire an exclusive monopoly, while the loser’s work will then be totally wasted. This type of objection is based on the error of equating the potential with the actual The fact that a man might have been first, does not alter the fact that he wasn’t. Since the issue is one of commercial rights, the loser in a case of that kind has to accept the fact that in seeking to trade with others he must face the possibility of a competitor winning the race, which is true of all types of competition.
Today, patents are the special target of the collectivists’ attacks — directly and indirectly, through such issues as the proposed abolition of trademarks, brand names, etc. While the so-called “conservatives” look at those attacks indifferently or, at times, approvingly, the collectivists seem to realize that patents are the heart and core of property rights, and that once they are destroyed, the destruction of all other rights will follow automatically, as a brief postscript.
The present state of our patent system is a nightmare. The inventors’ rights are being infringed, eroded, chipped, gnawed, and violated in so many ways, under cover of so many non-objective statutes, that industrialists are beginning to rely on secrecy to protect valuable inventions which they are afraid to patent. (Consider the treatment accorded to patents under the antitrust laws, as just one example out of many.)
Those who observe the spectacle of the progressive collapse of patents — the spectacle of mediocrity scrambling to cash-in on the achievements of genius — and who understand its implications, will understand why in the closing paragraphs of Chapter VII, Part II of Atlas Shrugged, one of the guiltiest men is the passenger who said: “Why should Rearden be the only one permitted to manufacture Rearden Metal?”