Front Page Titles (by Subject) CHAPTER 13.: The Right of Incorporeal Property - The Principles of Ethics, vol. 2
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CHAPTER 13.: The Right of Incorporeal Property - Herbert Spencer, The Principles of Ethics, vol. 2 
The Principles of Ethics, introduction by Tibor R. Machan (Indianapolis: LibertyClassics, 1978). Vol. 2.
Part of: The Principles of Ethics, 2 vols.
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The Right of Incorporeal Property
303. Even the dog, which not only fights to retain a bone he has found but fights also to preserve the coat or other object left in his charge by his master, can recognize ownership of a visible, tangible object; and hence it is clear that only a small reach of intelligence is needed for framing in thought the right of material property. But a much greater reach of intelligence is called for when the property is neither visible nor tangible. Constructive imagination is requisite for conceiving the existence of a mental product; and a higher constructive imagination is requisite for conceiving that a product of mental labor may as truly be considered property as a product of manual labor.
That the two stand on the same footing is demonstrable, whether we contemplate the positive or the negative element of the right. Remembering that justice under its positive aspect consists in the reception by each individual of the benefits and evils of his own nature and consequent conduct, it is manifest that if any individual by mental labor achieves some result, he ought to have whatever benefit naturally flows from this result. Justice, as we have defined it, requires that the connection between conduct and consequence in this case shall not be traversed any more than in any other case: the claim to the anticipated good is a valid claim.
No less obvious is it that the negative element of justice, which, among associated creatures, restrains the activities of each within the limits imposed by the like activities of all, forbids appropriation of another's mental product; or rather, forbids use of it without the assent of the producer, if it is of a kind from the use of which by others the producer sought advantage. Supposing a mental product elaborated by A, is, without his assent, used to their own advantage by B, C, and D, they commit breaches of the law of equal freedom; since they have severally benefited by utilizing the product of A's mental labor without affording A an opportunity of benefiting by utilizing any equivalent products, material or mental, of their own labor. Should it be replied that A's mental product is not taken away from him by others but only used by them; then the rejoinder is that with mental products, as with material products, the use by others may be the contemplated source of profit. One who builds a house and lets it, or makes a carriage which travelers hire, is held to be defrauded by those who occupy the house or hire the carriage without payment. He did not provide for his own use but for others' use and he does not receive that return the expectation of which prompted the building or the making. Even if no express contract has been made to pay the rent or hire, the owner is admittedly injured. Similarly, then, though one who has elaborated a mental product is not deprived of it by those who use it, yet even in the absence of any definite understanding with them, he is defrauded if others use it without giving him the benefit for which he worked.
There are two classes of mental products from others' use, or reception, of which, the producers expect advantage: those embodied in books, musical compositions, works of plastic art, &c., and those embodied in inventions, mechanical or other. We will consider these separately.
304. A man may read, listen and observe to any extent without diminishing the liberty of others to do the like. The knowledge thus obtained may be digested, reorganized and new knowledge educed from it by its possessor, without trespassing against his fellows. If he keeps to himself these derived conclusions valuable for guidance, or elaborated thoughts valuable for beauty, no one can say that he exceeds the limits of individual freedom; and if, instead of keeping them to himself, he decides to publish them, he may without aggressing upon any one impose his own terms. Others remain free to accept or refuse, and if they refuse, remain as they were before. But if others disregard his terms–if, having sold to them copies of his book, either himself or through an agent, on the tacit understanding that for so much money he gives, along with the printed paper, the right of reading and of lending to read, but not the right of reproduction; then any one who reproduces breaks the tacitly imposed conditions and commits an aggression. In return for the money paid, he takes a benefit far greater than that which was intended to be given for the money.
Strangely enough, there are intelligent men who contend that when a book has been issued it becomes public property, and that it is a corollary from the principles of free trade that any one who pleases may reprint it and sell copies for his own advantage. They assert that a copyright is a monopoly–ought not to be considered a form of private property. But if nobody's property is taken by one who infringes copyright, how can the thing taken be of value? And if the thing taken be of no value, then the man who takes it would be no worse off if prevented from taking it. If he would be worse off, then clearly he has got something of value. And since this something of value is not a natural product, the obtainment of it must be at the expense of some one who artificially produced it. As I some years since argued:
Those who, as members of the Copyright Commission, or as witnesses before it, have aimed, if not to abolish copyright, yet to restrict it in ways which would go far towards its abolition, have done so in the alleged interests of free trade, and have sought to discredit the author's claim, as now recognized, by calling it a monopoly In the politicoeconomic sense a monopoly is an arrangement under which a person or body of persons is given by law the exclusive use of certain natural products, or agencies, or facilities, which, in the absence of such law, would be open to all; and the opponent of a monopoly is one who, asking nothing from the monopolist in the way of direct or indirect assistance, asks only that he also may use these same natural products, or agencies, or facilities. He wishes to carry on a business which in not the remotest way makes him dependent on the monopolist, but which he can carry on as well or better in the absence of the monopolist, and in the absence of everything done by him. Turn now to the commerce of literature, and ask how stands the so-called free trader and the so-called monopolist? Does the so-called monopolist (the author) forbid the so-called free trader (the reprinter) to use any of those appliances or processes, intellectual or mechanical, by which books are produced? No. These remain open to all. Does the so-called free trader wish simply to use these open facilities independently, just as he might do if the so-called monopolist and his works were absent? No. He wishes to be dependent–he wishes to get advantages which he could not have were the so-called monopolist and his works absent. Instead of complaining, as the true free trader does, that the monopolist is an obstacle put in his way, this pseudo free trader complains that he may not utilize certain aids which have arisen from the labor of the man whom he calls a monopolist. The true free trader wishes only to use natural facilities, and complains of an artificial impediment. The pseudo free trader, not content with the natural facilities, complains that he may not use, without buying it, an artificial aid. Certain opponents of copyright expressed astonishment before the Commission that authors should be so blinded by self-interest as not to see that in defending their claims, as now recognized, they were defending a monopoly These authors might fitly express their astonishment that professed exponents of politicoeconomical principles should confound the case of a man who wishes to trade just as he might do had a certain other man never existed, with the case of a man who wishes to trade in a way that would be impossible had a certain other man never existed. The entire anticopyright argument rests on the confusion of two things radically opposed, and with the establishment of the proper distinction the argument disappears.
[Edinburgh Review, October 1878, pp. 32—30.]
Considered, then, as a deduction from the fundamental principle of justice, copyright cannot, I think, be questioned with any show of reason.
305. First customs, and then laws, have recognized the claims of mental producers. Originally, authors “were rewarded by the contributions of the audience or by the patronage of those illustrious persons in whose houses they recited their works”: disregard of the obligation to remunerate being regarded as mean, if not dishonest. In later Roman times, this proprietory right had become so far established as to have a mercantile value. Mr. Copinger points out that several ancient authors sold their productions; viz. Terence his Eunuchus and Hecyra, and Statius his Agave: the implication being that the copyists had acquired practically, if not by law, exclusive use of the MSS. In our own country, the equitable claim of the author has for these two centuries been enforced. An act of Charles II forbade the printing of a work without the writer's assent; and under this act, copyrights were so far established as to be bought and sold. In 1774 it was decided that common law gives the author and his assigns sole right of publication in perpetuity; but that the period had been abridged by a previous statute to a term of years. The principle was subsequently extended to other forms of mental products, as specified in the essay by Mr. Robertson–to certain works of art by 8 Geo. II, c. 13, 7 Geo. III, c. 38, and 38 Geo. III, c. 71 (models and casts); to dramatic productions by 3 & 4 Will. IV c. 15; to lectures by 5 & 6 Will. IV, c. 65; to musical productions by 5 & 6 Vict., c. 45; to lithographs by 15 & 16 Vict., c. 12, and to paintings in 1862.
By those who have legislated, as well as by those who have considered the question from an ethical point of view, the proper duration of copyright has been a problem not easily solved: should it be for the author and his descendants without limit, or for his life and a term of years after, or for his life only? There is no obvious reason why property of this kind should not be subject to the same laws of possession and bequest as other property. If it be said that the language, knowledge, and other products of past culture used by the author or artist, belong to society at large; the reply is that these mental products of civilization are open to all, and that an author or artist has not by using them diminished the ability of others to use them. Without abstracting anything from the common stock, he has simply combined with certain components of it something exclusively his own–his thoughts, his conclusions, his sentiments, his technical skill: things which more truly belong to him than do any visible and tangible things to their owners; since all of these contain raw material which has been removed from the potential use of others. So that in fact a production of mental labor may be regarded as property in a fuller sense than may a product of bodily labor; since that which constitutes its value is exclusively created by the worker. And if so, there seems no reason why the duration of possession in this case should not be at least as great as the duration of possession in other cases.
Leaving this question, however, it is enough to note here that the right of property in this species of mental product, above deduced from the formula of justice, has, in later civilized times, come to be embodied in law, and that the embodiment of it in law has become more extensive and more specific as social development has become higher.
306. What has been said above in relation to books and works of art, applies, by simple change of terms, to inventions. In imagining and bringing to bear any new or partially new, mechanical appliance, or in devising some process different from, or better than, those before known, the inventor is making no greater use of preexisting ideas, tools, materials, processes, than every other person may make. He abridges no one's liberty of action. Hence, without overstepping the prescribed limits, he may claim the exclusive benefit of his invention; and, if he discloses the secret, may. without aggressing upon any one, dictate the terms for utilization. While, contrariwise, another person who does not accede to his terms, cannot utilize his invention without breach of the law of equal freedom; since he appropriates a product of the inventor's labor without allowing the inventor to appropriate an equivalent product of his labor or an equivalent possession of some other kind.
That one who has spent years in thinking and experimenting, often joining expenditure of money with his brain work and handwork, should not be admitted to have an equitable claim to the resulting advantage, is a fact discreditable to the average conscience; and it is the more discreditable when taken in connection with the fact that various claims implying no labor or sacrifice are not only allowed but insisted upon. A speculator who makes money by a rise in the share market, a sinecurist who has long received a large salary for doing nothing, and even a descendant of a king's mistress who is in receipt of a pension that was granted in perpetuity, has his conventionally established rights tenderly considered; while the mechanic who, working early and late, perhaps to the destruction of his health and the frittering away of all his means, has at length perfected a machine of marvelous efficiency, is not supposed to have acquired any “vested interest” in this outcome of the vital energies he has irrecoverably spent upon it. Most of his fellow men are quite willing that he should sacrifice time and money and labor, meanwhile jeering at him as a visionary schemer; but when to their astonishment he succeeds, and the beneficial results flowing from his achievement become manifest, there arises the exclamation, “Oh! this is a monopoly and ought not to be tolerated.” Even should those in power take measures to protect him and others such, so that if he can pay in fees the sum demanded he may take out a patent,10 the measures are taken not on the score of equity but on the score of policy. “A patent is not a thing which can be claimed as a right,” the lawyers say; but it is intended to “act as a stimulus to industry and talent.” So that though the taking of the smallest material product–as a penny filched from the till by a shop boy–is a punishable offense, this mental product, great as its worth and immense as the labor it has cost, may, in the absence of certain legal formalities, be turned by a capitalist to immense profit, without punishment and without disgrace.
Even were an invention of no benefit to society unless thrown open to unbought use, there would still be no just ground for disregarding the inventor's claim; any more than for disregarding the claim of one who labors on his farm for his own benefit and not for public benefit. But as it is, society unavoidably gains immensely more than the inventor gains. Before he can receive any advantage from his new process or apparatus, he must confer advantages on his fellow men–must either supply them with a better article at the price usually charged, or the same article at a lower price. If he fails to do this, his invention is a dead letter; if he does it, he makes over to the world at large nearly all the new mine of wealth he has opened. By the side of the profits which came to Watt from his patents, place the profits which his improvements in the steam engine have since brought to his own nation and to all nations, and it becomes manifest that the inventor's share is infinitesimal compared with the share mankind takes. And yet there are not a few who would appropriate even his infinitesimal share!
But insecurity of this kind of mental property, like insecurity of material property, brings disastrous results. As in a society so governed that one who accumulates wealth cannot keep it, an unprosperous state results from lack of capital; so, among a people who ignore the inventor's claims, improvements are inevitably checked and industry suffers. For, on the average, ingenious men will decline to tax their brains without any prospect of returns for their labors.
Here, however, we are chiefly concerned to observe that, if not from motives of equity, then from motives of policy. the inventor's claim has slowly been established by law. Though, in our own country. patents were originally granted as matters of favor; and though, for a long period, they were confounded with monopolies rightly so-called; yet when, in 1623, monopolies rightly so-called were made illegal, there was recognized a distinction between them and the exclusive rights granted to inventors. Besides the belief that it was expedient to encourage inventors, there was perhaps a dim perception that while, in the case of a monopoly rightly so called, other people are in no way indebted to the monopolist for ability to carry on their activities, but would have done as well or much better had he never existed; in the case of the so-called monopoly of an inventor, other people who use his invention are indebted to him, and had he never existed would have been unable to do that which they now do with his help. Whether with or without any vague consciousness of this, the inventor's claim, for several centuries legislatively enforced, has of late come to be more carefully regarded; and by great reduction of fees, the impediments in the way of obtaining legal protection have been reduced. To which add that there has been a like growing recognition in the laws of other countries, and a much greater one in America; with a resulting superiority in labor-saving appliances.
A restriction of the right thus set forth and justified, must be named. It is a truth, made familiar by modern experience, that discoveries and inventions, while in part results of individual genius, are in part results of preexisting ideas and appliances. One of the implications, also made familiar by modern experience, is that about the period, when one man makes a discovery or invents a machine, some other man, possessed of similar knowledge and prompted by a like imagination, is on the way to the same discovery or invention; and that within a moderate period this discovery or invention is tolerably certain to be made elsewhere–possibly by more than one. A long-continued exclusive use of his invention would therefore be inconsistent with other equitable claims likely to arise; and hence there is need for a limitation of the period during which he may rightly receive protection. Over how many years the protection should extend, is a question which cannot be answered here; and, indeed, cannot be answered at all in any but an empirical manner. To estimate the proper period account should be taken of the observed intervals of time commonly elapsing between similar or identical inventions made by different men. There might fitly be some recognition of the prolonged thought and persevering efforts bestowed in bringing the invention to bear; and there should also enter into the calculation an estimate, based on evidence, of the probable interval during which exclusive use of the invention should be insured to make possible an adequate return for labor and risk. Obviously the case is one in which the relations of the individual to other individuals and to society, are so involved and so vague, that nothing beyond an approximately equitable decision can be reached.
307. Yet another kind of that which we may class as incorporeal property has to be here dealt with–a kind distinguishable from the kinds dealt with above, in the respect that it does not finally issue in physical benefit, but issues in mental benefit–in the agreeable emotion caused by other men's approval.
This form of incorporeal property is, indeed, an accompaniment of the forms arising from mental achievements. The reputation obtained by a poem, a history. a scientific treatise, a work of plastic art, or a musical composition, is regarded by the producer as part of the reward for his labor–often, indeed, the chief part. And at the same time that he is held entitled to the resulting credit, the endeavor made by another to obtain by plagiarism the whole or part of this credit, is regarded as a disgrace. Though there is no legal penalty for this kind of theft, yet there is a social penalty. Similarly with a discovery or an invention. Not the pecuniary profit only is recognized as rightly belonging to the originator, but also the applause appropriate to his ingenuity or insight; and reprobation is vented on one who tries to intercept this applause by pretending to be the inventor to the discoverer. Tacitly, if not overtly, the acquired share in the good opinion of fellow men is considered a thing to be enjoyed; while the usurpation of it is condemned as dishonest. The reputation gained is treated as incorporeal property.
But another and far more important kind of incorporeal property is that which arises, not from intellectual achievement, but from moral conduct. If the reputation brought by mental actions which take the form of production, may fitly be regarded as incorporeal property, still more may the reputation brought by mental actions issuing in rectitude, truthfulness, sobriety. and good behavior at large, which we call character; and if deprivation of the one is flagitious still more is deprivation of the other. Earned like other property by care, self-denial, perseverance, and similarly giving its owner facilities for gaining his ends and satisfying divers desires, the esteem of others is a possession, having analogies with possessions of a palpable nature. Indeed it has, like palpable possessions, a money value; since to be accounted honest is to be preferred as one with whom dealings may be safely carried on, and to lose character is to lose business. But apart from this effect, an estate in the general goodwill appears to many of more worth than one in land. By some great action to have won golden opinions, may be a richer source of gratification than to have obtained bank stock or railway shares. Hence, men who have invested their labor in noble deeds, and receive by way of interest the best wishes and cordial greetings of society, may be considered as having claims to these rewards of virtue, resembling the claims of others to the rewards of industry. Of course this is true not only of those who are distinguished by unusual worth; it is true of all. To the degree in which each has legitimately gained a good repute, we must hold him entitled to it as a possession–a possession which, without quoting the hackneyed saying of Iago, may be held of more value than any other.
The chief way in which this product of good conduct differs from other mental products, is that though, like them, it may be taken away, it cannot be appropriated by the person who takes it away. This may perhaps, be considered a reason for classing the interdict against injuring another's character as an interdict of negative beneficence rather than an interdict of justice: an illustration of the truth that the division of ethics into separate sections cannot, in all cases, be clearly maintained. Still, since a good reputation is acquired by actions carried on within the prescribed limits to actions, and is, indeed, partly a result of respect for those limits; and since one who destroys any or all of the good reputation so acquired, interferes with another's life in a way in which the other does not interfere with his life; it may be argued that the right to character is a corollary from the law of equal freedom. If it be said that whoever is thus injured may (in some cases at least) retaliate on the injurer, as we see in recrimination, or, as among the vulgar, in the mutual calling of names; the reply is that, as shown in chapter 6, the law of equal freedom, rightly interpreted, does not permit exchange of injuries; and as it does not countenance physical retaliation neither does it countenance moral retaliation. So that though another's good character, when taken away, cannot be appropriated by the traducer, the taking of it away is still a breach of the law of equal freedom, in the same way that destroying another's clothes, or setting fire to his house, is a breach.
This reasoning concerns only those cases in which the good reputation enjoyed has been rightly obtained, and does not touch those cases in which it has been obtained by deception or survives through others' ignorance. Consequently, it cannot be held that one who injures another's good reputation by stating facts at variance with it which are not generally known, breaks the law: he simply takes away that which ought not to have been possessed. Whatever judgment may be passed on his act, it cannot be assimilated to acts in which the character taken away is one that is legitimately owned. Indeed, in many cases, his act is one which conduces to the welfare of others, and, in some cases, is prompted by the desire to prevent trespasses upon them. Hence, though it may be held punishable, in common with acts which take away character rightly possessed, there does not seem to be any ethical warrant for the punishment.
There remains to be noticed the blameworthiness of those who aid and abet the taking away of character by repeating injurious statements without taking any trouble to ascertain their truth. At present those who circulate a calumny without inquiring into the evidence, or estimating the probability. are supposed by most people to have committed no offense; but, hereafter, it will perhaps be seen that they cannot be exoneraated, but are liable to penalty. Indeed in law they are not exonerated
As in the preceding cases, the ethical requirements have, as just implied, grown into legal recognition. The forbidding of false witness against a neighbor is of ancient date. Libel, even when directed against the dead, was punishable under the Roman law. In lower stages of civilization, however, protection of character by punishment of slanderers, was established chiefly in the interests of the superior. The Buddhist code prescribed a severe punishment for insulting speech against a man of the highest caste. During early times in Europe, men of position were supposed to preserve their characters, as well as their possessions, by force of arms. Later there came legal protection of the higher from libels uttered by the lower, against whom the remedy by duel was not available. In the reign of Edward I; this remedy was initiated; and it was more fully enacted, with this avowed purpose, by Richard II. Instead of being a law for the advantage of a privileged class, the law of libel eventually became a law for the advantage of all classes; and has, in our own days, come to be constantly invoked with effect: indeed with too much effect, considering that that which may be regarded as fair criticism is sometimes held to be libelous.
Here then, as before, a conclusion which may be deduced from the fundamental principle of equity. has, with the advance of society acquired a legal embodiment.
[]Not many years since the total cost was several hundred pounds.