Concepts of Property and the Biotechnology Debate

Paul B. Thompson

Professor, Department of Philosophy, Humanities and Agricultural Economics
Director, Center for Biotechnology, Policy and Ethics
Texas A&M University
College Station, TX 77843-4355

[published September 1992]

The goal of this paper is to outline some of the philosophical approaches to the theory of property. Each section of this paper will sketch some possible applications to products and processes of recombinant DNA transfer. These comments and applications must be regarded as speculative; it is far from clear how ethical norms should be applied in assessing biotechnology property claims. Comments on applications should be interpreted as illustrative of theory, rather than as action-guiding. The overall thesis is that we are far from a clear understanding of how property rights might be defended for biotechnology, much less how they should be.

Framing the Ethical Question of Property Rights

The discussion of patent law has dominated the discussion of property claims for biotechnology. Philosophical analysis of property claims in biotechnology has become entangled with questions about filing requirements, tests for efficacy, and the rules for licensing and defending patents. While patents may turn out to be the best legal instrument for protecting legitimate property claims in biotechnology, exclusive focus upon the patentability of organisms begs several philosophical questions that deserve attention.

It is therefore useful to imagine how property claims upon genetically altered organisms might be recognized and defended without patent protection at all. It may be possible, for example, for a company to engineer sterility into a valuable organism, or short of that, inheritance characteristics that protect valuable genetic traits in the way that hybrid vigor protects corn varieties marketed by major seed companies. While such a strategy would not protect these traits from reverse genetic engineering by other biotech companies, it is possible that the market structure could produce corporate norms whereby competitors simply refrain from such actions. Such a situation would confer an effective property right on the genome, but it is still relevant to ask whether a company would be ethically justified in protecting the genome this way.

It is also possible (perhaps even likely) that a company might prefer to retain control over an engineered microbe, plant or animal by refusing to patent or release the organism at all. Such a strategy is most likely for organisms that are useful in manufacturing processes. They may wind up being legally protected as trade secrets. The limit case for illustrating non-patent property rights is a society in which there are robustly shared moral norms for claiming and respecting property rights, so much so that legal protection is unnecessary. While this limit case is far from our own society, it illustrates a situation in which patent law does not exist, but where property claims still do. In each of these cases it is still relevant to ask whether property claims are ethically justifiable. However unlikely such non-patent forms of intellectual property might be, it is still useful to bear them in mind as prerequisites to framing ethical questions about property.

The ethical questions to be asked are of two kinds:

  1. What sorts of things can become property, or, more simply, what is property?
  2. How are assignments of ownership to be made?

Although some approaches to property make it difficult to keep these questions separate, they are separated here because the analysis that follows is intended to concentrate on the first question, giving only incidental attention to the second. Separating the questions also helps illustrate how the first question may or may not be a normative one. The matter of what can and cannot be property might simply be a matter of fact, determined by empirically observable characteristics of the good in question. The same question can also be asked in a purely normative vein: what sorts of things is it moral, ethical or otherwise legitimate to regard as property? Human beings, for example, clearly have been held as chattel property throughout history. One strategy for opposing slavery is to argue that they should not have been. This argument interprets the question of property status normatively. Another strategy is to admit that human beings can be property, but to argue that ownership rights must be assigned reflexively, and that they are not transferable. This strategy accepts a positivist answer to the first question, and opposes slavery through its answer to the second.

These alternative approaches to the property status of human beings suggest two final observations for framing the ethics of property claims. First, the conceptual resources available for analyzing any sort of property claims have been influenced greatly by the question of human slavery. It will prove helpful to revisit this theme in what follows. Second, the ownership of human beings has not been thought to have much to do with patentability. Indeed, the Fourteenth Amendment has been interpreted to exclude human beings from otherwise applicable aspects of patent law. There are, thus, historically important ethical considerations regarding property rights that are not only independent from patent arguments, but which establish ethical constraints upon patent law. A hasty discussion of biotechnology property rights in terms of patent provision may lead us to overlook such issues.

Theories of Property

This section will sketch three broad philosophical theories of property. They are offered as distinct, but not mutually exclusive approaches. The next section will demonstrate how Locke’s theory of property combines all three. The first is a natural theory of property, one which defends the claims that natural facts determine what is property and who owns what. The second approach is in fact a broad class of theories that understand property as a social construction validated in terms of its instrumental capacity to produce or secure other ethical goals. The third approach is a labor theory that grounds property claims in productive activity.

  1. Natural Theory

    It is possible to believe that certain things are naturally fit to become property, while others are not. The idea that property is a component of natural law has been influential in European history. Such a belief is particularly plausible when one’s concept of nature includes a benevolent, but also judgmental God, who has designed the fixtures of the earthly realms in accordance with His plan. Given such a theology, a natural theory of property becomes an attempt to ascertain God’s intentions. Used to defend the divine right of kings to domain over lands and people, such a theory may depend as much upon theology as upon what we recognize as natural facts in the twentieth century. Although, frankly, it is difficult to imagine a thoroughly natural theory of property in a postmodern world, a few themes from natural theory continue to be plausible, and potentially influential. The first is that it is certain characteristics of goods that determine their status as items of property. Rivalness, for example, refers to whether it is possible for more than one person to use or consume the good without diminishing the amount of good available for others. Goods such as canned food and clean water are rival; goods such as street lighting and national defense are nonrival. A second natural characteristic is how easy it is to exclude others from using or consuming a good. Canned foods are relatively excludable in that one may lock them up, preventing their appropriation and use by others. By contrast, it may be fairly difficult to exclude people from access to clean water or street lighting. Natural facts about excludability and rivalness thus provide one way to decide whether or not something can be claimed as property. Goods which are naturally rival and excludable are easily defensible as items of property. The two traits leave considerable grey area where the relative rivalness and excludability of goods do not provide the basis for a secure judgment.

    In such cases, a different element of natural property theory may emerge. It is one which treats all of nature as a heritage to be shared equally by all human beings. Such a principle for deciding property claims would accept that highly rival and excludable goods are “fit” to become property, but would decide the grey cases in favor of a non-property or common-property determination. Works of pure artifice might also be understood as property, but works of nature would be though held in common by all persons. Justice Burger’s majority opinion for the U.S. Supreme Court decision in Diamond vs. Chakrabarty appeals to such a view implicitly, holding that Chakrabarty deserved a patent for his bacterium because it was his own handiwork, and not “a manifestation of nature, free to all men and reserved exclusively to none.”

  2. Instrumentation Theories

    In contrast to philosophies that see property as a natural kind, it is far more common today to see it as a social construction, as an institution or form of social rule that is validated to the extent that it is useful to produce some more fundamental kind of good. There are several types of goods that property rights might be thought to produce. One is liberty. A second is social utility or value. The third is social stability. Social stability most likely would be produced if recognition of property claims were necessary in order to resolve disputes or social conflicts, but such disputes and conflicts would most likely arise only when individuals felt themselves to have legitimate property claims for other reasons. As such, it seems reasonable to omit further discussion of stability arguments in the present context.

    Property rights might be instruments for protecting civil liberties to the extent that freedom of action, freedom of expression and freedom of exchange depend upon the institution of property rights for their effective exercise. One may feel constrained in one’s ability to produce or enjoy some goods if one cannot be assured some degree of control over their use. Many liberties depend upon one’s ability to have certain goods at one’s disposal, and if the protection of such liberties is thought to be a valid social norm, then recognition of such property rights will follow.

    Utility- or value-based views are far more predominant in discussion of biotechnology. Here, the idea is that property rights are justified because they facilitate the creation and allocation of valued goods in society. The idea that property claims are justified when they create incentives for innovation, incentives that would otherwise be lacking, is an example of utility- or value-based reasoning. Biotechnology and intellectual property often are discussed exclusively in terms of a utility- or value-based approach.

  3. Labor Theory

    A labor theory of property holds that a person’s productive work is the basis for a property claim. People are entitled to claim what they make or create as their own. The mere act of discovery does not establish a property claim, but the appropriation of the discovered good to some further purpose does imply some element of labor. As long as previous property claims upon the appropriated good are discharged fairly, a person’s transformation of the appropriated good to some useful purpose establishes a property claim.

    Note that a labor theory of property is not a labor theory of value. Claiming that something is ownable (and, indeed, owned) by virtue of the labor invested in its appropriation, creation, manufacture or development entails nothing about its value. If value is determined by exchange, it is clearly possible to invest substantial amounts of labor into items which are of no value whatsoever. A labor theory of property would nevertheless support the claim that such valueless items are the property of their manufacture irrespective of whether they have exchange value or social utility.

Locke’s Theory of Property

Although one might offer a philosophically “pure” theory of property based on any one of these approaches, John Locke’s paradigm-setting account of property in the Second Treatise of Government attains a great deal of its intellectual force in the way it combines elements from all three. Each type of strategy for establishing and assigning property rights appears in Chapter 5, “Of Property.” Each type of strategy might be expected to produce very different answers to the two noted above. Locke, however, unites the strategies into a single theory. Although he relies upon economic arguments that are not plausible to contemporary readers, the philosophical subtlety of Locke’s achievements should not be underestimated. Undone by its economic assumptions, the ragged strands of Locke’s unraveled argument present us with confusing and contradictory alternatives to the property questions of today.

The natural themes in Locke’s account of property are stated explicitly, and are, indeed, a framing assumption for the entire corpus of Locke’s political thought. Chapter 5 begins with a reassertion of the claim that reason and revelation converge upon the conclusion that the earth has been given to mankind in common. The passage might be read as establishing the origins of property in God’s grace to mankind. Since Locke has expressed, in the First Treatise, opposition to arguments, which establish a monarch’s claim upon servants and property through a similar act of God, he is compelled to conclude that God’s grace confers a natural right of property to the earth upon all men in common. This interpretation of Locke validates the basis of property claims in terms of natural rights, which, in Locke’s view, are conferred by God, but apparent to all who posses reason. It poses a problem, however, in that “...it seems to some a very great difficulty, how any one should ever come to have a property in any thing” (Locke, p. 18). Thus, while natural rights establish the metaphysical basis of property, they do not transparently establish the basis for property claims by individuals, as opposed to property held in common by all.

Locke supports two arguments for resolving this difficulty, introducing each in the passages immediately following his opening statement of the difficulty. The first is an instrumental argument: “God, who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life, and convenience” (Locke, p. 18). The passage may be read as suggesting that reason will lead us to an interpretation of property that is consistent with, perhaps even shaped by, our mutual desire to obtain advantages and conveniences. Individual property rights will, thus, be assigned insofar as they facilitate this end. The second argument follows in the very next paragraph:

Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labor of his body and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labor with and joined to it something that is his own, and thereby makes it his property (Locke, p. 19).

In this passage, Locke rather explicitly introduces the labor strategy. Subsequent passages in the chapter provide more evidence for interpreting each of the two strategies. Locke develops the labor strategy extensively before returning to the instrumental theme. His oft cited example concerns the basis for claiming ownership in acorns or apples, picked up or gathered from nature’s bounty. He concludes “...that it is the taking of any part of what is in common, and removing it out of the state nature leaves it in, which begins the property,” (Locke, p. 19) and, “The labor that was mine, removing them out of that common state they were in, hath fixed my property in them” (Locke, p. 20). The argument here should be read against a background problem that does not receive explicit treatment in Chapter 5. Locke’s case for opposing (or limiting) human slavery is based on the assumption that human beings are owned reflexively. This assumption has two important consequences for his political philosophy. One is that a just conqueror indeed gains absolute power over the lives of those who opposed him; that is, they become his slaves. Those who unjustly place themselves in a state of war against others place their initial right of ownership in their own persons at risk by doing so. An ethically defensible state of slavery arises when these reflexive property rights are held forfeited following defeat by conquerors acting in a just cause (Locke, p. 45, also pp. 93-94).The second consequence is that labor becomes a basis for claiming property in goods external to the person. Locke’s concept of the person quite plausibly assumes that self-ownership entails ownership of one’s own labor. Indeed, the strategy of reflexive assignment for human property rights provides no argument against slavery without this assumption. A human being assigned to forced labor is effectively a slave, even if the legal apparatus of property is absent. The forced appropriation of one person’s labor by another is morally equivalent to slavery. If the product of any person’s labor may be appropriated unilaterally without consent, such a person is hardly in a position of controlling own labor in a manner consistent with the principle of reflexive property rights in the human person. Thus, one person may not claim property in the product of another’s labor without obtaining free and willing consent. In this argument, individual liberties become a consequence of the labor theory of property. It may now seem more plausible to assign liberties a more fundamental ethical status, and to define property rights as means for protecting liberties. (See Paine.) While civil liberties are clearly included among Locke’s natural rights, the reflexive assignment of property in the human person is not offered as a means for protecting liberty, but as a philosophically independent argument entailing civil liberty rights on entirely separate grounds. Locke’s reflexive assignment of property in the human person entails a labor theory of property, but Locke was aware that such a theory was open to objections. The most serious weakness is an apparent implication that fairly trivial acts of labor could establish trivial property rights over a broad range of goods. Locke describes two constraints upon the labor theory. One is that an appropriation of some good from its natural state is legitimate so long as “there was still enough, and as good left,” (Locke, 21) for others. This constraint has come to be called the Lockean proviso. Another constraint, however, stipulates a principle based upon use: “As much as any one can make use of to any advantage of life before it spoils, so much he may by his labor fix a property in: whatever is beyond this, is more than his share, and belongs to others” (Locke, pp. 20-21). In this passage, the instrumental strategy emerges. Arguments, which justify property claims in terms of the use value they create, become extremely important in the closing passages of Chapter 5. Here, Locke confronts the fact that the creation of money allows one to circumvent the problem of spoilage, and to plausibly claim some use or advantage for the accumulation of property without limit. The argument becomes explicitly instrumental in a passage where Locke provides a justification for the enclosure of lands that sent many rural citizens to the cities, looking for opportunities to sell their labor:

He who appropriates land to himself by this labor, does not lessen, but increases the common stock of mankind: for the provisions serving to the support of human life, produced by one acre of enclosed and cultivated land are...ten times more than those which are yielded by an acre of land of an equal richness lying waste in common. And therefore, he that encloses land, and has a greater plenty of the conveniences of life from ten acres, than he could have from an hundred left to nature, may truly be said to give ninety acres to mankind: for his labor now supplies him with provisions out of ten acres, which were but the product of an hundred lying in common (Locke, pp. 23-24).

This passage rather explicitly stipulates a principle of social utility whereby property claims are justified as an institution for optimizing (or increasing) the total amount of valued goods, or, in Locke’s phrase, the common stock of mankind. Chapter 5 can thus be seen to propose the following burden of proof for establishing a philosophical basis for property rights:

  1. At first, a natural criterion for identifying and assigning property confers the status of property upon the entirety of nature, but assigns the ownership of nature to all in common, with a single exception.
  2. The single exception is that property in the human person is assigned reflexively and is forfeited only under conditions of just conquest over those who have initiated an unprovoked declaration of war.
  3. This establishes a labor criterion of property, whereby individuals may claim property in all goods they appropriate from the state of nature through the work of their hands.
  4. Property claims established on the basis of this labor criterion are constrained by the Lockean proviso, and by a doctrine limiting acquisition to amounts which can be used. The latter constraint introduces an instrumental criterion for property rights
  5. Finally, when institutions such as money or enclosure increase the potential for use to the point that increases in productivity make up for whatever value would be lost by creating the institutions, the Lockean proviso is satisfied by the increased value. Hence the property claims created by the institutions are justified.

Locke’s intricate interweaving of natural, labor and instrumental criteria provides a theory of property in which burdens of proof shift back and forth among each. The inclusion of reflexive rights in the human person makes the natural component of the theory an important safeguard against slavery and infringements of liberty, and it also lays the basis for the labor criterion as a test which must be met if the presumption in favor of common ownership is to be reversed. The instrumental criterion places an important check on labor arguments, but as developed so far is ambiguous. As stated above, the instrumental criterion might be applied across the board to all goods, including both the common stock of nature an goods already appropriated from nature through the labor of others. That is, there might be institutions, which would increase social utility, even if no labor has gone into the productive activity that establishes the property right. Locke’s examples are of acquisition through labor, but beyond the capacity for use. There might also be cases of acquisition by fiat which would also withstand the productivity test. Furthermore, it may be quite possible for one person to create more social utility by appropriating the property of another. As such, if the instrumental criterion is taken to supersede the four preceding tests in this theory of property, both natural and labor claims will turn out to be vacuous. Locke might have responded to this problem by stipulating that instrumental criteria can be applied only in those cases where the previous tests have already been met. Instead, the balance of Chapter 5 undertakes a complicated and unconvincing metaphysical argument. It is at this point that the labor theory of value is introduced in a passage that begins,

***********************To make this a little clearer, let us but trace some of the ordinary provision of life, through their several progresses, before they come to our use, and see how much they receive of their value from human industry. ...labor makes the far greatest part of the value of things we enjoy in the world. ...[L]and that is left wholly to nature...is called, as indeed it is, waste; and we shall find the benefit of it amount to little more than nothing (Locke, 26).

Locke goes on to argue that money economies arise through mutual agreement as a means for preserving the labor value of perishable goods, increasing the common stock of provisions for mankind. The labor theory of value, of course, receives extensive development at the hands of Adam Smith, who seems to be following Locke’s sentiments when he argues that exchange value and social utility are reflections or manifestations of the underlying labor value of manufactured goods. If this view were true, it would turn out that the labor criterion for property would converge upon the same institutions as the instrumental criterion, and that they would, indeed, do so in virtue of a natural feature of production and exchange. Such a result fuses the three strands represented by natural, labor and instrumental criteria into a single cord, unified by metaphysical necessity. The conceptual elegance of this result may explain part of its attraction to Locke and Smith. Furthermore, the labor theory of value might be interpreted as a normative theory of exchange value, rather than as a positive or metaphysical theory of values that actually are being exchanged. Such an interpretation would allow a critique of property institutions that create effective distributions of property at odds with the distributions that return value based upon on individual’s labor contribution to the manufacturing process. The possibility of so combining libertarian and Marxist themes is intriguing, but diverts the current argument from its central theme. The more typical response among contemporary theorists has been to dismiss all passages in Locke that refer to labor criteria on the grounds that the labor theory of value has been discredited in contemporary economic theory. Hettinger (1989) does this in whittling Locke’s three-stranded approach down to a single instrumental one, which Hettinger interprets in utilitarian terms. This response to Locke conflates the labor theory of value with the labor theory of property, and begs the question against both natural and labor criteria for legitimating property claims. A more accurate conclusion is that the unity of Locke’s theory has indeed come unraveled, leaving contemporary theorists with three criteria that establish rather different and relatively incompatible burdens of proof.

Property Claims and Biotechnology

This final section will examine how each of the now divergent threads of Lockean property theory point in different, though not necessarily contradictory, directions when applied to questions in biotechnology. One reason why it is difficult to say anything very definitive about property rights for biotechnology is that each of the three criteria at work in Locke’s theory is now subject to forms of interpretation that differ substantially from those of the late seventeenth century. Another reason, however is that the products and processes of biotechnology are themselves very different. Until recently, discussion has focused upon genetically altered organisms, with considerably more interest in animals than plants. A new controversy has emerged over NIH filing of patent claims on various and sundry fragments of genetic code. While some have criticized this action, it should be noted that the act of filing allows the decision on patentability to be made by experts at the patent office and in the courts, while the act of not filing effectively makes the decision on the basis of the relatively less informed judgment of NIH scientists. Criticism of NIH should probably be tempered. However, the storm of criticism undoubtedly reflects a widespread judgment on the part of the scientific community that the sequences under consideration should be understood as discoveries, rather than as inventions. Again, without implying anything about technical questions of patentability under existing law, it will be illustrative to consider how each of three sets of criteria might be applied both to whole organisms and to fragments of genetic code.

Natural criteria for property survive into the present in a form significantly altered from their application in Locke’s theory. In the first instance, the theological warrant for property has all but vanished, with theological arguments being offered most commonly to limit the application of property claims. Thus, the new strategy is to reverse Locke’s original judgment that all things, including human beings, are property, and to make the normative argument that some things should not be considered to be property at all. It goes without saying that human beings will be the paradigm example of a non-property good. From this starting point, at least two rather different strategies for applying natural criteria are available. One stresses analogy to the human case, the other stresses natural facts about goods that arise in connection with their use by humans.

One way to arrive at the conclusion that human beings cannot legitimately be understood as property, even as property reflexively owned, is to argue that the concept of property implies a status of subservience that is inconsistent with certain natural facts about human beings, to wit, that humans are free and autonomous agents, acting in pursuit of rationally chosen interests. Regarding oneself as one’s own property might, on such a view, be self-contradictory, since one would be seeing the potential use or sale of oneself as a potential means for realizing those interests. The Kantian spirit of such an argument should be evident, and the details need not concern us here. While one might still be able to exchange labor for other goods on a Kantian view, the autonomous agent that is at the core of the Kantian person could not, with moral justification, be owned, by self or other. Recent attempts to extend this notion of personhood to non-human animals entail that ownership of any subject of a life, to use the phrase favored by Tom Regan, cannot be justified on ethical grounds. This view, which provides the basis for a radical critique of chattel property rights, would presumably extend to any transgenic animals that also possess the requisite moral characteristics.

This argument from analogy to the metaphysical status of the human person may prove far too much to be very influential in assigning property rights for products of biotechnology. It may well provide some motivation for vague or underspecified feelings that it is morally wrong to own living things, but so long as the organisms in question are unarguably not human, the analogy will be persuasive only to those few who are willing to abandon the considerable existing edifice of institutions establishing property rights in non-human organisms. If taken seriously, the criterion suggests science fiction scenarios, where autonomy is engineered out of organisms as a way to establish ownership rights in a species of drone zombie organism, which can be treated legitimately as slaves. Furthermore, the Kantian view applies most clearly to individual organisms, not to their genomes. If the Kantian view proves anything, it proves that individual human beings cannot ethically be classified as property. The genome of an individual human being, however, fully sequenced and sitting on a magnetic data base, is not an autonomous, Kantian moral agent. As such, while this view might remove individual animals, human or other, from property status, it may not protect even the full human genome, much less fragments of genetic code.

An interpretation of natural property criteria that stresses properties of rivalness and excludability presents far more applicable norms for biotechnology. On this view, the property rights would be recognized to the extent that natural features of excludability and rivalness are present. Such a view favors chattel property rights, or ownership of a specific individual, but provides strong grounds for rejecting all intellectual property rights. Biotechnology might even be used to engineer rivalness and excludability into certain organisms, by introducing and eliminating traits that affect reproduction, or uses that deviate from intended purposes. One might, for example, increase the rivalness of a hen that lays golden eggs by engineering traits that would preclude her use as fried chicken. Such strategies would not, however, protect others from reverse engineering any organisms they legitimately could acquire. Ownership would be limited to that which one could easily control in virtue of its physical characteristics, and property rights would primarily protect against common forms of theft.

While such a view is also very much at odds with many current practices, it is nonetheless the currently viable core of Locke’s use of natural criteria. In Locke’s theory, natural criteria establish universal common property rights in all goods. Although Locke’s discussion of natural rights is theological, his references to the natural state of goods imply what we would regard as a naturalistic account of material goods for which rivalness and excludability are obvious characteristics. In stipulating that all such goods are held in common, Locke stipulates a burden of proof that is biased far more radically against individual property claims than one which resolves such claims relative to the natural excludability and rivalness of the good in question. A natural property criterion is plausible to the extent that it is assumed to establish a heavy burden of proof against property status for nonexcludable, nonrival goods. To say this is not to say that such a burden of proof can never be met. As in Locke’s in own theory, labor or instrumental criteria may be advanced to meet it. If the natural criteria are to be meaningful at all, however, there must be some weight to the test that labor or instrumental criteria are expected to meet.

It is, in fact, labor criteria that establish the strongest and most plausible claim for property rights in biotechnology. There can be no denying that transgenic organisms and even fragments of code become available to us as a result of a great deal of labor. This labor is both intellectual and physical, though perhaps not as onerous as that involved in clearing and improving land. If labor establishes a claim upon a parcel of land, it should also establish a claim upon the fruits of biotechnology research. There is, however, one potential qualification. Locke’s examples of labor establishing a property claim are restricted to productive activities such as clearing land or gathering apples. These are activities directed rather immediately to processes of production and consumption. It is less clear that discovery, particularly intellectual discovery, involves labor exerted in the form that has traditionally been taken to establish a property right. If it is possible to argue that discovery does not involve labor in the relevant sense, it is likely that the transgenic organism will be defensible as property, while the fragment of code will not.

The distinction between production and discovery can be developed by combining the labor criterion with the natural criterion implied by excludability. Once a physical object such as a farm, a bag of apples, an automobile, or words on a page, has been created, it is vulnerable to appropriation by persons other than those whose labor created it. If labor indeed originates the property claim, then appropriation without consent violates a property right. Ideas and discoveries are, in themselves, immaterial, and prior to publication, invulnerable to appropriation by others. While we think of intellectual products as nonrival and nonexcludable, knowledge and other purely intellectual goods are potentially the most excludable goods of all, capable of being carried to one’s grave without others even suspecting their existence. We do not need legal property rights to protect the labor which went into the creation of knowledge and ideas, though the papers, notes or data used in the process of discovery would certainly be personal property in virtue of the physical work of writing, and vulnerable to appropriation by others. None of this, however, says anything about how we should regard the act of publishing what one knows, suspects, or otherwise thinks. The labor theory would entail that a scientist may not be compelled to publish against her will, but it need not entail that society must allow her opportunities to publish under whatever terms she demands.

The labor theory thus has a seam with regard to intellectual property. While the intellectual laborer is as entitled to own the immediate fruits of his or her labor as any other, this entitlement does not establish the terms on which publication will take place. In a totally laissez-faire system, such terms would presumably be negotiated between the intellectual laborer and others desiring the intellectual good. The intellectual laborer knows that upon publication, the intellectual good is both nonrival and nonexcludable, hence he or she may negotiate a system of rights or licenses with every person in the society who is likely to use the good prior to publication. People in the society are likely to agree to such terms, since such an agreement may be the only way that they will get to use the good at all. They will not, however, agree to rights and licenses over knowledge that is easily obtained. One might pay for knowledge about a short cut to the airport, but it is unlikely that everyone in society would be willing to recognize any individual’s exclusive right to such knowledge. Judgments about the novelty of the relevant knowledge will therefore become part of the negotiations. Such negotiations are likely to prove time consuming and expensive, however, and one can easily imagine how a system much like patent law would arise to standardize the problem of assigning rights and licenses. The procedure solves the problem of missing criteria for publication, and would provide the intellectual laborer the option of seeking protection, or of publication with such future rights.

At this juncture, it is important to stress that instrumental or utilitarian considerations have not been introduced at all. A utilitarian interpretation of instrumental property criteria would justify the recognition of a property claim just in case recognizing the claim optimizes the creation of social value. Hettinger (1989) has done a fine job of laying out a framework for analyzing an intellectual property claim’s ability to produce benefits and costs to society as a whole. Some more general points are worth noting, however. As a unilateral theory of property, utilitarian criteria provide no basis for distinguishing between production and discovery, hence organisms and fragments of code will presumably both be evaluated in terms of whether recognizing property claims creates more social utility than not. Indeed, they provide no basis for recognizing property rights based upon labor at all, and would justify appropriation of all goods so long as doing so optimizes social efficiency. While cavalier appropriation of property would not be likely to promote social efficiency, it is precisely such likely inefficiency that is the only utilitarian hedge against property rulings violating some of our most deeply held beliefs about who can and does own what. This is a theme that has been visited so thoroughly by libertarian theorists since Nozick that there is little point in rehearsing it here.

What is surprising is the extent to which utilitarian theories have held sway in debates over intellectual property, generally, and with respect to biotechnology in particular. The argument most prominently introduced for recognizing property rights in genetically altered organisms or in segments of genetic code is that doing so will establish incentives for research that will ultimately be socially beneficial. The argument is offered without qualification, despite the fact that similar arguments produce absurd conclusions for other forms of knowledge and ideas. Teachers would have more incentive to educate their students if they were entitled to a share of each student’s lifetime earnings. Scientists would have more incentive to develop broad theories if they could capture royalties in every instance where the theories are republished or applied. Musicians would have more incentive to produce catchy harmonies and melodic themes if they could capture the value created when other musicians incorporate these fragments into best selling songs. Parents would have more incentive to teach their children common sense if they could reap more of the benefits from doing so.

It seems likely that utilitarian analysis of intellectual property claims is actually being carried out against a background of assumptions about property rights that cannot, in themselves, be justified on utilitarian grounds. In addition to the natural and labor criteria discussed here, instrumental criteria for property that examine impact upon liberty and upon social stability may also be a component of those background assumptions (though arguments about social stability can be readily given a utilitarian interpretation). If so, the utilitarian or instrumental arguments are effectively functioning as modifications of broad judgments that previously have been made on the basis of natural or labor criteria. An application of natural criteria would establish a prejudice against recognizing property rights in the products of biotechnology, but an application of labor criteria would reverse this judgment. Labor criteria are themselves modified in response to the problem of distinguishing production from discovery. Only then would utilitarian criteria become relevant as final elements in concluding a judgment for a particular case. If this is indeed the pattern that should be applied to biotechnology, the discussion thus far is an instance of flailing away at a rough hewn slab with tools that have been designed for finishing touches and final details. A broader and more sophisticated view of the conceptual tools at our disposal will improve the quality of debate.

References

  • Diamond v. Chakrabarty, 447 US 303 (1980).
  • Hettinger, Edwin. “Justifying Intellectual Property.” Philosophy and Public Affairs 18 (1989), pp. 31-52.
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