My discussion of intellectual property inevitably raised questions about my argument that property rights are not natural rights, but are socially constructed and, in the modern world, exist only as part of the legal structures created and enforced by states. The “moral rights” of artists over their creative works has been raised as a suggested counterexample. In fact, this example reinforces my original argument. Two cases arise, both of interest:
In the United States, the moral rights of artists were effectively unrecognised by law until accession to the Berne Convention 1989, and remain extremely limited. The result is that, once an artist has sold the rights to her work, she has no control over its subsequent use, unless she can make a case separate from moral rights, for example that use in an advertisement misrepresents the artist as endorsing the product. So, for example, it’s perfectly legal to use London Calling to advertise Jaguars, or to clip Fortunate Son to fit a jingoistic ad for jeans. Moral rights are widely recognised, and may generate social opprobrium for those who violate them (as with other misuses of property rights) but they have no legal standing.
In France and other European countries, artists have inalienable moral rights over their work, to prevent misuse of the work by the initial or later purchasers. This is not a property right, but a constraint on property rights. To the extent that moral rights are recognised after the fact, they constitute a taking from the purchaser of the property right. To the extent that they are recognised when artists sell rights to their work, they (like any restriction on alienation of property) represent a constraint on the property rights of the artist. Melanie Safka recognised this, in an ironic fashion, in her classic Look what they’ve done to my song, Mawhen she wrote
It’ll be all right ma, maybe it’ll be okay
Well, if the people are buying tears
I’ll be rich someday, ma
Coming back to the general issue, property rights and (perceived/socially accepted) natural rights have features that mean they tend to coincide in some ways and conflict in others. Most obviously, they are both associated with the general feeling of rightful possession, so that a system of property rights is more stable when it coincides with natural rights. On the other hand, natural rights are mostly perceived as inalienable and indivisible, while property in its ideal form is infinitely transferable and divisible. Moral rights for artists are a classical example of the clash between inalienability and unfettered property rights but the same clash arises at every point in the production process.
The New York Times has a piece about Obama’s push to gain “fast-track” authority for the proposed Trans-Pacific Partnership, which would preclude any amendments by Congress after the deal (still secret, except for what Wikileaks has revealed) is announced. The key para, buried a fair way down
To the president, the Trans-Pacific Partnership would counter the economic weight of China and set rules on labor, the environment, intellectual property and investor protections for the growing economies of the Pacific Rim. For members of Congress, it’s about jobs.
shows how differently the debate is playing out in the US compared to other countries involved, such as Australia, and how much leading papers like the New York Times are missing the point
In the Australian debate, it’s generally understood (based on both economic modelling and past experience) that there won’t be much effect on jobs either way, at least not through the direct effects on trade. For the critics (just about everyone on the left), it’s precisely the “rules on labor, the environment, intellectual property and investor protections” that represent the big concerns. All of these rules benefit corporations at the expense of workers, the environment, the free flow of information and national sovereignty. It’s the general strengthening of corporate power, and not the flow of goods, that will harm jobs, wages and working conditions Investor-State Dispute Settlement provisions, for example, have been used to challenge minimum wage laws.
Leading US critics like Elizabeth Warren and the AFL-CIO have raised some of these points, noting (for the benefit of Republicans in particular) that the ISDS provisions will enable unaccountable arbitrators to override US federal and state laws.
The use of trade deals as an instrument of geopolitics is also unwelcome for a country like Australia that needs to balance itself between the US and China. Despite its enthusiastic support for the US and the TPP deal, the conservative government here signed up to join China’s regional infrastructure bank, developed largely in response to China’s exclusion from the TPP.
But US news coverage can’t seem to get out of a frame set by the trade deals of last century, such as NAFTA.
The US Congress is rightly regarded as a dysfunctional mess, blocking vital legislation for trivial partisan reasons. But occasionally, things work out for the best. A variety of critics ranging from left and liberal Democrats to members of the Tea Party appear likely to derail ‘fast track’ authority for Obama to sign the appalling Trans-Pacific Partnership. By contrast, the Abbott government is keen to sign this secret deal and has dropped Labor’s objections to clauses that would allow foreign corporations to sue our government for policies inconsistent with the market liberal ideology that informs the treaty. Let’s hope the whole thing is slowed down until the 2016 election year. If that happens, the pressure to renegotiate the deal, or scrap it altogether, will become intense.
Coincidentally, Wikileaks has published a draft chapter from the agreement, hidden from us by our governments and making clear what everyone knows. This isn’t about trade but about imposing market liberal institutions, including strong intellectual property in pharmaceuticals, copyright and so on.
Until relatively recently, Big Tobacco appeared invincible. Despite the fact that tobacco smoke was full of known carcinogens that would have had a factory shut down if they came out of the smokestack, and ample evidence that exposure to tobacco smoke caused cancer, not to mention the violation of liberty associated with blowing smoke in public places, Big Tobacco effectively resisted even the mildest restrictions on its activities. It was aided by a team of scientists and other “experts” willing to claim that the hazards of smoking were non-existent or overstated (notable names here include Enstrom & Kabat, Gio Batta Gori, Richard Lindzen, Steve Milloy, Fred Seitz and Fred Singer – Google has details).
Virtually all the main rightwing thinktanks in the US and Australia went along with this fraud (AEI, Cato, Centre for Independent Studies, CEI, Heartland and IPA among many others). While they might legitimately have argued part of their case on strict libertarian grounds, that would not have been sufficient to resist restrictions on passive smoking. So, they published attacks on science which any reasonable assessment would have shown to be false. In doing so, of course, they encouraged people to take risks with their own lives and those of others, while happily accepting money from the merchants of death. Whether they were knowingly lying, or merely recklessly indifferent to the truth, this episode should have discredited them forever (it certainly has with me).
But the tide has turned. US litigation in the 1990s exposed a treasure trove of internal documents which eventually led to racketeering convictions for the main tobacco companies. And now the High Court has rejected Big Tobacco’s (legally preposterous) challenge to plain packaging legislation in Australia, made on the supposed basis that it represented a taking of intellectual ‘property’. Not satisfied with one preposterous claim, the tobacco companies are planning another, having bribed the government of Ukraine to make a WTO accusation of trade restraint. Actually, this is a good thing. This case is such an obvious abuse of process, and the litigants so clearly evil, that the WTO will surely not be crazy enough to support their case. In rejecting it, they will probably be forced to set precedents that make future interference with domestic health policy more difficult.
Coming to the policy merits, the current legal status of tobacco is, in my view, a pretty good model for drugs in general – legally available, but with all kinds of promotion prohibited and with an active public health campaign to give accurate information on the associated risks.
A few years back as part of the attack on climate science (and in particular the famous ‘hockey stick’ graph) Senator Joe Barton commission an assessment of the work of Michael Mann and others from Professor Edward Wegman of George Mason University, along with his former student Yasmin Said and some others. This included, not only Wegman’s supposedly independent assessment of the statistical methods used by Mann but a ‘social network analysis’ of the relationship between Mann and his co-authors, which purportedly showed that Mann’s network of co-authors dominated the climate science field. As I pointed out at the time, Wegman et al started the analysis with Mann at the centre, so the primary result was that Mann had written a paper with every one of his co-authors! Nevertheless, a version of the paper was published in Computational Statistics and Data Analysis, in which Wegman took this analysis to the startling conclusion that senior academics should not collaborate with each other, but should instead work only with their students. Wegman follows his own advice in this respect, and now we can see why.
It’s just been announced that the paper is to be retracted on the grounds that it contains extensive plagiarism, much but not all of it from Wikipedia. Wegman’s response, showing the wisdom of his research strategy, is to blame his graduate student, who was not, however credited as an author. USA Today, which has taken the lead in following the Wegman plagiarism story, asked an actual expert to look at the paper and her reaction was about the same as my amateur assessment (Wegman and Said are also newcomers to the field, which may explain their heavy reliance on Wikipedia as a reference source).
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Updated June 2019: The book mentioned in this post is now published as Economics in Two Lessons, from Princeton University Press.
I’m thinking about doing another book, which would be a reply to Henry Hazlitt’s Economics in One Lesson a tract published in 1946, and available online, but still in the Amazon top 1000. It’s largely (as Hazlitt himself says) a rehash of Bastiat.
I’ll try to put up a prospectus soon, but I thought I’d start with something simpler, a response to Leonard Read’s 1958 I, Pencil. This essay is a description of the incredibly complex “family tree” of a simple pencil, making the point that the production of a pencil draws on the work of millions of people, not one of whom could actually make a pencil from scratch, and most of whom don’t know or care that their work contributes to the production of pencils. So far, so good. Read goes on to say that
There is a fact still more astounding: the absence of a master mind, of anyone dictating or forcibly directing these countless actions which bring me into being. No trace of such a person can be found. Instead, we find the Invisible Hand at work.
Hold on a moment!
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Felix Salmon has a great piece responding to a WSJ puff piece on the American trademark troll company that has stolen the name “Ugg boot” then used “intellectual property” laws to impose the absurd claim that the only genuine Uggs are those made in China.
The world would be a lot better off without intellectual property, or at least with a return to the more reasonable rules of the 19th century (14 years copyright, limited patents restricted to actual inventions, trademarks to identify products rather than to stifle competition) and the attempts of the US government to defend IP monopoly rights are one of the many reasons American “soft power” is such a perishable commodity.
At dinner last night (an event to celebrate various research awards won by people at UQ) I was talking with an engineering professor about the question of how to promote innovation without reliance on patents and forms of monopoly rights (usually referred to as intellectual ‘property’). One solution is to offer prizes for valuable discoveries. This is a nice idea, but there are lot of practical problems in setup and administration. Nicholas Gruen has an interesting startup, aiming to simplify this process. Read about it here.
fn1. This doesn’t rule out IP, but it offers a potential alternative.