The Law of Intellectual Property : Part 1, Chapter 5
(1808 - 1887) ~ Individualist Anarchist and Unitarian Christian Abolitionist : The greatest natural rights thinker of the 19th century was the American lawyer and maverick individualist Lysander Spooner. He responded to the tumultuous events of his era, including the Panic of 1837 and the Civil War, with pamphlets about natural rights, slavery, money, trial by jury and other timely subjects. (From : Jim Powell Bio.)
• "The doctrine that the majority have a right to rule proceeds upon the principle that minorities have no right in the government; for certainly the minority cannot be said to have any rights in a government so long as the majority alone determine what their rights shall be." (From : "Free Political Institutions," by Lysander Spooner.)
• "Again, the doctrine that the minority ought to submit to the will of the majority proceeds, not upon the principle that government is formed by voluntary association and for an agreed purpose on the part of all who contribute to its support, but upon the presumption that all government must be practically a state of war and plunder between opposing parties..." (From : "Free Political Institutions," by Lysander Spooner.)
• "There is no particle of truth in the notion that the majority have a right to rule, or exercise arbitrary power over, the minority simply because the former are more numerous than the latter. Two men have no more natural right to rule one than one has to rule two." (From : "Free Political Institutions," by Lysander Spooner.)
Part 1, Chapter 5
As a matter of public policy, the expediency of allowing a man a perpetual property in his ideas, is as clear as is that of allowing him a perpetual property in material things.
What is the argument of policy against a perpetual property in ideas? Principally this—that the world will get ideas cheaper, if they get them for nothing, than if they pay for them.
This argument would be just as good in favor of abolishing the right of property in the material products of men's labor, as it is for abolishing it in intellectual ones. Take wheat, for example. If the right of property in wheat were abolished, the world would get the stock of wheat, that is now on hand, for nothing. But the next crop of wheat would be a small one; and people would then learn, that in the long run, the cheapest mode, and the only mode, of procuring a constant and ample supply of wheat, is to acknowledge that wheat is the property of the producers, and then to buy it of them by voluntary contract. Under the system of a right of property in wheat, there will be a perpetual supply of wheat; because men have a sufficient motive to produce it; and a man can always procure enough for his uses, by giving a reasonable proportion of the products of his own labor in exchange. But under the system of no right of property in wheat, he would be able to get wheat at no price whatever, after the present stock should be consumed; simply because men would have no sufficient motive to produce wheat, unless their right of property in it were acknowledged.
The principle is the same in regard to valuable ideas. We can get the free use of the present stock of ideas, by destroying the rights of the producers to their property in them. But if we do, the next crop of ideas will be a small one, as in the case of the wheat.
If we want no new ideas, but only wish to get the use of the present stock for nothing, without regard to justice, the true way undoubtedly is, to abolish all rights of property in them. But if we wish to induce men of inventive minds to go on producing new ideas, the true way certainly, if not the only way, is to respect their rights of property in those they have already produced.
But governments have the idea that intellectual men—especially authors and inventors—can be induced to work, if they can but be permitted to enjoy a partial or temporary property in the products of their labor; while it is conceded that all the rest of mankind should enjoy a full and perpetual property, in the products of theirs. But there are the same reasons of policy, for allowing men a perpetual property in their ideas, that there are for allowing them a perpetual property in the material products of their labor.
What are the great incentives to enterprise and industry in the production of material wealth? Plainly these—the thoughts that whatever a man acquires, will be his during life, or during pleasure, and that, at his death, whatever he leaves, will go to those whom he wishes to provide for. These are the all-powerful springs, and almost the only springs, that keep all physical industry in motion, and supply the world with wealth.
The policy of nature, for supplying mankind with subsistence, is, that each man shall labor, first and principally, for himself, and those most dear to him; and only secondarily and discretionally, for mankind in general; unless, indeed, his labors for mankind at large, can be made productive of support to himself, and those naturally dependent on him. In this way, each man laboring for, and supplying, those nearest to him, all are labored for, and supplied. This policy is dictated and impelled by the natural strength of the human affections, which are uncontrollable by human statutes; and no adverse policy, devised or dictated by lawgivers, such as that of requiring a man to work for mankind at large, instead of working for himself and his friends, can either stifle these natural motives, or supply others of any thing like equal power over the energies of men.
But how would these motives be weakened, and nearly deadened, by the knowledge that, at the end of a brief period, the products of a man's labor would be taken from him, against his will, and given to men, whom he never knew, or knowing, does not love? And how would the general production of wealth be checked, and nearly paralyzed, by the establishment of such a principle, as a universal law? How many fruitful farms, for example, would ever have been reclaimed from their wilderness state, if those, who felled the trees, and subdued the soil, had known that, after a period of fourteen years, the fruits of their labors would be taken from them and their families, and be made the common property of the world? How many substantial, comfortable, and elegant dwellings would ever have been erected, if those, who built them, had known that, after occupying them, with their families, for fourteen years, they would be required to admit the world at large to an equal occupancy with themselves? The universal, and the universally known, nature of man answers these questions; and tells us that, with such a prospect before them, mankind, as a general rule, would labor only for the production of such things, as they and theirs could actually consume within the time they were allowed to possess them; that they would not labor for the benefit of robbers, intruders, or strangers; that they would therefore attempt none of those accumulations for the future, which each man and each generation of men now attempt, under the inducements furnished by the principle of perpetual property, in one's self and his descendants.
The consequence, therefore, of such a principle would be universal poverty. Men would produce only as they consumed. And this state of poverty would continue so long as the right of individual and permanent property was denied. But let the right of individual and perpetual property, in the products of one's labor, be acknowledged, and the whole face of things changes at once. Each man, secured in his right to what he produces, commences to accumulate for the benefit of himself, and those whom he desires to protect. He controls and enjoys his accumulations during life, and at death leaves an important portion of them to his children, to aid them in making still greater accumulations, which they, in turn, leave to their children. And this process continues, until the world arrives at that state of wealth, in which we now find it; the whole world enriched by the wealth of individual proprietors; instead of the whole world being impoverished, as in the other case, through the impoverishment of the individual producers of wealth.
Such being the law of man's nature, imperatively controlling his motives and energies, there is no reason why the true policy indicated by it—that is, the policy of perpetual property—should not be applied as well to the producers of intellectual, as of material, wealth. There is no reason why the principle of individual and perpetual property, in ideas, will not prove as beneficient towards the whole human family, by stimulating the production of valuable ideas, as does the same principle when applied to corporeal things. Men produce valuable ideas just in proportion as they are furnished with the necessary facilities, and stimulated by adequate motives. This they do under the influence of the same law, which stimulates them to the production of material wealth. And the increase of intellectual wealth would be as much accelerated, by the adoption of the principle of perpetuity, in reference to intellectual property, as is the increase of material wealth, by the adoption of the same principle, in reference to material property. On the other hand, the production of intellectual wealth is as much checked, and discouraged, by the systematic plunder of the producers, as the production of material wealth would be, by the systematic plunder of its producers. The production of intellectual and of material wealth obeys the same laws in these particulars. And these laws are utterly irrevocable by human enactments. Government cannot compel the Arkwrights, and Fultons, and Morses to invent their great ideas, and give them to mankind. It can only induce and enable them to do it. And this the government must do, or mankind must lose the benefits of the ideas themselves.
Such, then, being the inevitable conditions, on which alone these valuable ideas can be obtained, the questions for society to settle are, simply, whether government shall encourage the production of these ideas, by protecting them as property to their producers? And whether, when the public want them, they shall be necessitated to buy them, and pay for them, as for other property? Or whether the production of them shall be discouraged and suppressed, by the systematic and legalized robbery of the producers?
At present, the United States, England, and some other nations say, by their laws, "we will give this property a partial protection—that is, the protection of civil, but not of criminal, laws; and even that protection it shall have only for a brief period; after which, it shall be a subject for free plunder by all."
What effect this system has upon the production of valuable ideas, may be judged of, by the effect, which a similar system confessedly would have, upon the production of wealth, by the physical industry of men. If such a system would discourage all physical industry, it now discourages all intellectual effort, in a corresponding degree. And, consequently, we now have a correspondingly less number of valuable inventions, than we otherwise should have. Under a system of full protection—that is, the protection of both civil and criminal laws—and of perpetual property in the producers, we should doubtless have five, ten, twenty, or more times as many valuable inventions, as we now have. This may be safely predicated, both from the general principles governing the production of all valuable commodities, namely, that they are produced in quantities corresponding to the protection afforded them, and the prices paid for them; and also from an observation of the present condition of inventors generally, and of the difficulties they encounter in bringing out their ideas. What is that condition? And what are those difficulties? In the first place, the general condition, of both authors and inventors, is that of poverty. Doing incomparably more to enlighten and enrich mankind, than any other persons, they are probably, as a class, poorer than any other industrious class in the community. This is all owing, especially in the case of inventors, to the miserable protection afforded to their property, and the consequently small price they obtain for their labor. In the second place, the difficulties they experience in bringing out their ideas, arise solely from their poverty, and their inability to obtain the necessary capital with which to make their experiments, and upon which to live while making them. This inability to obtain capital, results wholly from the want of protection given to such property; whereby the value of each inventor's prospective property, in his inventions, is rendered so precarious as to be a wholly inadequate security for investments. The natural risks of an inventor's failure to make an invention, interpose such an obstacle to the procuring of capital, as can be overcome only by the prospect of large profits in case of success. But when this prospect of large profits, in case of success, is cut off by the inadequate protection afforded to the property to be produced, and the brief period for which even that protection is afforded, there is no adequate security left, as a basis for investments. And nearly all capitalists view the matter in this light. Inventors, therefore, as a general rule, are unable to procure capital. The consequence of this want of capital is the same, in the case of inventors, that it is in the case of any of the other industrial classes; for an inventor can no more produce ideas, without a money capital, than other men can produce houses, ships, or railroads, without a similar capital. The result is, that a large portion of the inventions, that otherwise would be made, are never brought out; and the world loses the benefit of them. The operation of these causes, in crippling the powers of inventors, is so general, so nearly universal, and so severe, as to have become a matter of the most public notoriety. Yet the true remedy, and what must, in the nature of things, be the only true and practicable remedy, is seldom proposed, and has never been adopted.
If the property of inventors were fully protected, and made perpetual, they would find no more difficulty in obtaining the capital necessary for their purposes, than other men do in finding it for theirs; because, although there may be more risk as to the success of a single experiment of theirs, than there is of the success of the ordinary operations of business, yet, in the long run, their labors would be much more lucrative, than the business of other men; and this prospect of superior profit, would enable them easily to command the necessary capital. Invention would become a regular business, a distinct profession, on the part of large numbers of men who have a talent for it, instead of being, as now, little more than the merely occasional occupation of here and there an individual. The number of inventors would thus, not only be greatly increased, but individual inventors would produce many more inventions than they now do. The number of persons, who have a natural capacity for invention, is probably as great as the number of those, who have a natural capacity for poetry, painting, sculpture, or oratory. And doubtless as many have been disabled and dissuaded, by want of means and inducements, from becoming inventors, as have been disabled and dissuaded, by the same causes, from becoming poets, painters, sculptors, or orators. But under a system of full protection, and perpetual property in their inventions, these naturally born inventors would nearly all devote themselves to invention, as their most congenial and lucrative pursuit. And the result doubtless would be, that we should have ten, twenty, and most probably fifty, or one hundred times as many, valuable inventions, as we now have.
Mankind do not perceive their true interests on this subject; and they are paying the penalty for their blindness, in the heavy toil, and the lack of wealth, which so large a portion of them endure. They have not yet fully learned that their brains, and not their hands, were designed for the performance of all heavy and rapid labor—that is, through the medium of labor-performing inventions. Yet such is the truth, as witness the water wheels, the steam engines, the electric telegraphs, the power looms, the spinning machines, the cotton gins, the carding machines, the sewing machines, the planing machines, the printing presses, the railroads, the vessels propelled by wind and steam, and the thousands of other inventions, (very many of which are so old, and in such common use, that we are apt to forget that they are inventions,) by means of which the power and speed of labor are so wonderfully, and almost miraculously, increased. Compare the speed, and the amount of the labor, performed by these instrumentalities, with the speed, and the amount of the labor, performed by men, without the use of these or other inventions; in other words, compare the labors of civilized men, accomplished through the instrumentality of labor-performing inventions, with the labor of savages, accomplished with the hands, unaided by such inventions; and we shall see at once the difference between men's brains and their hands, as instruments of labor. If, now, the products of men's brain labor, were as fully secured to the producers, as are the products of their hand labor, we should see such a development of brain labor, (in the shape of labor-performing inventions,) and of consequent wealth, as the wildest dreams of men have doubtless never conceived of.
Another consideration, that specially commends these inventions to the protection of the law, is, that the wealth, that results from them, cannot be monopolized by the owners of the inventions; but is generally distributed, with great impartiality, among all classes of society, from the richest to the poorest. How is this done? In this way. If the inventor becomes the manufacturer of the thing invented, he, like all other men, finds it for his interest to make quick sales, at small profits, rather than slow and small sales, at large profits; because he will thereby derive the greatest aggregate income from his invention. If, on the other hand, he chooses to license others to manufacture the thing he has invented, the same principle operates; and he finds it for his interest to license a large number of manufacturers, at low prices, rather than a small number, at high prices. He thereby insures such a competition between them, as will compel them to make quick and large sales, at small profits, rather than slow and small sales, at large profits.
If the thing invented be of much importance, and one for which there is a large demand in the community, the inventor generally finds it for his interest to license others to manufacture it, rather than become the manufacturer himself; because he thereby derives a greater profit from his invention, and also finds leisure and means for the more agreeable and lucrative employment of making still other inventions, the use of which he will sell or rent in like manner.
Thus, in all cases, the necessary operation of the laws of trade, or the principles of self-interest, on the part of the inventor, is to induce him, (either directly, as his own manufacturer, or indirectly, through those whom he licenses,) to insure a supply of the commodity to the whole community, at moderate prices. And this depression of prices is, in most cases, still further enforced by rival inventions, which accomplish the same results by different processes. In this way, the wealth produced by an invention, is spread abroad among the people at large, at such low rates of compensation, that the inventor secures but a very small portion of that wealth to himself, to wit: that portion only, which is paid him for the privilege of manufacturing and using the thing he has invented. And that portion, I presume, is certainly, on an average, not more than one per centum of the wealth actually created by his invention.*
Thus, in effect, an inventor really gives, outright to society, ninety-nine one-hundredths of all the wealth, which his invention produces. Yet society are so unwise, impolitic, ungenerous, and unjust, as to wish to deprive him even of the one per centum, which he wishes to retain, of the products of his labor. And after a period of fourteen years, they do deprive him of it.
Other producers, in their exchanges with their fellow men, give only dollar for dollar; and yet the government, by both civil and criminal laws, protects the products of their labor to them in perpetuity—that is, to them and their heirs and assigns forever. But inventors, who produce incomparably more than other men, and who, in their exchanges with their fellow men, are habitually accustomed to give one hundred for one, are systematically discouraged, disabled, and even deterred from producing inventions, by being denied all but an imperfect protection, and allowed even that only for a brief period; after which their property is made free plunder for all.
To ask if this be justice, would be an insult to the reason of all. The question now is, whether it be good policy for the public themselves, to discourage and suppress, by this systematic and wholesale robbery, those producers, who, if protected like other men, will give them an hundred for one? Whether the people at large can afford thus to impoverish themselves, by discouraging and suppressing the production of those inventions, which do nothing but enrich them? Can they afford to deprive themselves of the benefits of those inventions, which they otherwise might have, by refusing to inventors even one per centum of the wealth they produce? Can they, in other words, afford to lose the ninety-nine per centum themselves, to avoid paying the one per centum to the producers? These inventions cannot, and will not, be produced in adequate numbers, unless adequately paid for. That is a fixed principle in the natural law of production. How much clear gain, then, (for that is the true question to be solved by them,) will mankind realize, in the long run, from refusing to trade with, or encourage, a class of producers, who offer them, in exchange, a hundred for one? The world has long ago decided, that it is the wisest policy to protect the property of, and thereby encourage, those merely ordinary producers of material wealth, who, in their exchanges with their fellow men, demand dollar for dollar. Yet, strange to say, the world has not yet learned, that it is an unwise policy, to systematically plunder, and thereby systematically discourage, those extraordinary producers, (the inventors,) who, in their exchanges with their fellow men, ask but one dollar in exchange for a hundred! The fabled folly of starving the hen, that laid the golden eggs, is fully realized in the conduct of society in plundering and starving their inventors. These labor-saving and labor-performing inventions are the great fountains of wealth, without which mankind, (if the race could subsist at all,) would be only a few wretched savages, scarcely elevated, either in mental development, or physical comfort, above the condition of wild beasts. Yet they pretend to regard it as an act of both policy and justice, to outlaw, plunder, and treat as an enemy, every man who dares to open one of these fountains for their benefit—as if it were a moral duty, and would be a pecuniary profit, to deter and prevent him, and all others like him, from ever doing for them again a deed of such transcendent beneficence! To be consistent in this policy, they should make it a capital offense, for any man to supply the wants, relieve the toil, multiply the comforts, promote the health, prolong the life, enlighten the minds, or increase the happiness, of his fellow men.
The impolicy and inconsistency of governments, on this subject, are as palpable and enormous as their injustice. Take, for example, the governments of England and the United States. The so called statesmen of England have heretofore attempted to improve the agriculture of their country. And how did they proceed? Did they encourage chemists to prosecute their researches, and make experiments, to discover new processes or substances, by which the soil might be cheaply fertilized, and made more productive? Did they encourage ingenious men to invent new implements, by the use of which men and animals might perform more agricultural labor than they could before? Did they encourage either of these classes of inventors, by securing to them, by adequate laws, their just and perpetual property in their inventions? Such laws as would enable them to secure to themselves even one per centum of the wealth their inventions would create? No. They did nothing of this. On the contrary, they nearly outlawed their property, by giving it only the partial protection of civil laws, and that for a period of but fourteen years. This is all the encouragement they gave, to those extraordinary wealth producers, the inventors, who were willing and ready to give to the people of England an hundred pounds worth of agricultural products, in exchange for one pound in money. But, in place of thus giving any further or better encouragement to inventors, they proceeded to improve the agriculture of the nation, by laying duties of, say, fifty per centum, on an average, upon all breadstuffs imported from foreign countries; the effect of which was to enable the domestic agriculturalist to demand and obtain, of his fellow men, for all his agricultural productions, fifty per centum more than their just market value. In other words, the government virtually levied, upon the people at large, a tax equal to fifty per centum upon the true value of all the agricultural commodities produced and sold in the kingdom, and gave that enormous amount of money annually, as a gratuity, to those merely ordinary agriculturalists, whose industry was no more meritorious or productive, than the industry of those other people, who were thus taxed, or rather robbed, for their benefit. In still other words, the government, under pretense of promoting and improving the agriculture of the nation, virtually compelled the people at large to pay, to the merely ordinary agriculturalists of England, a pound and a half in money, for every pound's worth of food produced and sold in the kingdom; while, at the same time, it discouraged, outlawed, plundered, and thus in a great measure drove out of market, those extraordinary agricultural producers, the chemists and inventors, who were anxious and ready to furnish food to the people of England, at the rate of a hundred pounds worth of food, in exchange for one pound in money.
It is quite easy to see how this system of wholesale robbery was adapted to fill the pockets of the merely ordinary agriculturalists, at the expense of men, whose industry was equally deserving and laborious with their own. But it is not so easy to see what extraordinary adaptation it had, to advance either the art, or the science, of agriculture itself. Yet this was the mode, in which the so called statesmen of England attempted to improve the agriculture of their country. And they persisted in the attempt until the fear of civil war compelled them to abandon the system. But there is still equal, and indeed vastly more, need of a civil war, (if the object cannot be otherwise attained,) to compel the government to protect the property of, and thereby encourage, those extraordinary agriculturalists, the inventors, (including chemists,) who virtually offer to feed the people of England for one per centum of the existing prices.*
The statesmen of the United States of America attempted to promote the manufacturing arts in their country, by a system of legislation, similar to that adopted in England for the promotion of agriculture. They, in a great measure, outlawed the property of, and thereby discouraged, those inventive men, who would have devised new processes in the mechanic arts, whereby great wealth could be produced by a small amount of human labor; and who, as a compensation for their inventions, would have demanded but one per centum of the wealth those inventions would create. Having done this, they levied such duties on imported manufactures, as would make it necessary for the people at large to purchase their manufactured commodities, of the domestic manufacturer, (a mere ordinary producer, whose industry was no more meritorious than that of other men generally,) at the rate of, say, fifty per centum above their true market value. In other words, they compelled the people of the country, to buy their manufactured commodities of the mere ordinary producers, and pay them one dollar and a half in money, for every dollar's worth of goods; and at the same time outlawed, plundered, and thus discouraged, and in a great measure drove out of market, those extraordinary manufacturers, the inventors, who would have supplied the people with the same commodities, at the rate of one per centum on existing prices.* And they persisted in this policy until, as in England, the imminent danger of civil war compelled them, not to abandon the system, (for the system is not yet abandoned,) but to mitigate its severity. But a civil war is needed still more now, than then, (if the object cannot otherwise be secured,) to compel the government to protect the property of, and thereby encourage, those extraordinary manufacturers, the inventors, who in their exchanges with their fellow men, virtually give a hundred dollars worth of manufactured commodities, for one dollar in money.
The system of policy thus enforced upon the people, in England and the United States, is an example of that pretended wisdom, by which the affairs of nations are managed; and which, it is claimed, is far superior to the wisdom of justice! When will mankind learn—and compel their governments to conform to the knowledge—that justice is better policy than any scheme of robbery, that was ever devised? And that the true way of stimulating equally, justly, and to the utmost, both the physical and mental industry of all men, in the production of wealth, is simply to protect each and every man equally, in the exclusive and perpetual right to the products of his labor—whether those products be ideas, or material things?
If one tenth, (doubtless I might say one hundredth,) of those immense sums, which government has robbed from the people of England, and given, as a gratuity, to those ordinary agriculturalists, whose industry had no merit above that of other men, had been paid to chemists, who should have discovered new processes and substances for cheaply fertilizing the soil, and making it more productive; and to those mechanical inventors, who should have devised superior implements and instrumentalities for agricultural labor; who can rationally doubt, that the agriculture of England, both as a science and an art, would have been immeasurably in advance of what it is now? Or if one tenth, (I think I might say one hundredth,) of those many hundreds of millions of money, which in the United States, the government has plundered from the people, and given, as a gratuity, to those ordinary manufacturers, whose industry had no merit above that of other men, had been paid to those inventors, who should have devised new processes of manufacture, new machinery, new motive forces, and other instrumentalities for performing manufacturing labor, new articles to be manufactured, and new materials susceptible of manufacture; what rational man can doubt, that the manufacturing arts would, at this day, have been immeasurably in advance of what they now are?
But, with a considerable portion of mankind, robbery has been the favorite mode of acquiring wealth in all ages. All men desire exemption from severe toil; and the strong have usually sought to obtain it by robbing the weak. Thus strong nations have always been in the habit of making war upon weak nations, really from motives of plunder, though other motives may have been assigned. So also the rich and strong classes in a nation, have always been in the habit of combining, for the purpose of plundering the weaker classes of the same nation, by unequal and rapacious modes of taxation, and numerous other devices. In both cases the robbers seem not to have been aware, and probably have not been aware, that if all mankind were permitted to live in peace, and each individual to enjoy the fruits of his own labor, (including ideas, as well as material property,) the wealth of the world would increase at a rate that would enrich substantially all its inhabitants, incomparably faster even, than the strong can now enrich themselves, by the robbery of the weak. Take, for example, the cost, to the conquerors, of any war, ancient or modern, that has been carried on for purposes of plunder. Suppose one tenth of that cost, instead of being expended in war, had been paid to inventors; does any one doubt that, for that sum, inventions could have been produced, that would have added more to the wealth of the nation, than was gained by the conquest? And these inventions would not only have enriched the nation that produced them, but would have been also communicated to other nations. Thus many nations would have been enriched, at one tenth of the cost, at which one nation enriched itself, by the subjection and robbery of another.
At the present day, this policy of robbery is still predominant in the world; so much so, that nearly all the civilized nations of the world, keep immense armies, or navies, or both, for the double purpose of robbing other nations, and of protecting themselves against similar robbery. If one tithe of the money, that is annually paid for these purposes, by the several nations of Europe, were paid to inventors, these several nations might not only live in peace with each other, but each and all would very speedily attain to a wealth, greater than conquest ever aimed at, or conquerors ever conceived of.
To sustain the literal truth of this calculation, let us consider the wealth acquired by conquest, compared with that created by mechanical inventions. Of course, neither can be estimated with any thing like precision; but I apprehend it would be entirely within the limits of truth to say, that all the wars of Europe and America, in the last thousand years, have not brought as much net wealth to the conquerors, as has been created by the steam engine, and its subsidiary inventions, in the last ten, or even five, years. I apprehend also that all the British conquests in India, within the last hundred years, and all the oppressions practiced, within that time, upon 100,000,000 of people, have not succeeded in extracting so much net wealth from that country, as has been created by the spindles and looms of England, in the last ten, or perhaps even five, years.
If these conjectures be true, or any thing like the truth, they ought to do something towards opening men's eyes to the comparative policy of encouraging inventors, and supporting soldiers. And when it is considered that all these wars have been carried on, at the instigation and dictation of so called statesmen, we have an opportunity to judge, whether statesmen and soldiers, or inventors, are the real benefactors of mankind, and deserving of their support.
I imagine that few people stop to consider how large a proportion of the wealth, now existing in the world, is the product of labor-performing inventions. I recently saw it estimated, by a most respectable authority, that the steam engine had quadrupled the wealth of the United States. How near the truth this estimate may be, I do not venture to assert. But it is probably sufficiently near the truth for the purposes of this discussion. Now it is hardly fifty years, since the steam engine was brought to such perfection, and put into such extensive operation, in the United States, as to contribute very materially to the wealth of the country. Yet it is now said that it has quadrupled that wealth!
And how much have the people of this country ever paid to the inventors of the steam engine, in return for the immense wealth, which it has created? How much! It can hardly be said that they have paid any thing. If they have paid any thing, the amount has been so utterly contemptible, as that no one, who has any sense of shame, or any sentiment of justice, could hardly wish to see the amount put in print. But has such meanness and injustice been a wise policy for the people themselves? No. If they had paid to the inventors of the steam engine but one per centum annually of the wealth that invention was creating, they would thereby have given such a stimulus to invention, that we should doubtless, long before now, have had in use other motive forces far cheaper, safer, and better than steam. And what would have been good policy towards the inventors of the steam engine, would be good policy towards all other inventors. The amounts, that would be paid them, under a system of perpetual property, and full protection, would be, as we have before supposed, but one per centum of the wealth created by them. This one per centum is certainly but a trifle, a mere bagatelle, for the people to pay, out of the wealth created for them, and given to them, by the inventors. Yet this trifle, paid by the people, would be fortunes to those receiving it; and would give such encouragement to inventors generally, that inventions would be multiplied with a rapidity, of which we have now little conception. And the people would have the benefit of them. But so long as they refuse to pay even one per centum of the wealth produced, for the inventions they now have, it is reasonable to conclude they will have the benefit of but few new ones, compared with the number they otherwise might have.*
Let us now consider the reasons of policy, other than cheapness, against giving, to the property of inventors, that full and perpetual protection, which is given to the property of other men.
1. It is objected that the property of inventors ought not to have the protection of the criminal laws.
What foundation there is for this objection, I have never heard. And I apprehend that no reason whatever, worthy of a moment's consideration, can be offered, why the property of inventors should not have the protection of these laws, as fully as any other property. The willful invasion of another man's property, from motives either of malice or gain, is a crime; and if crimes against property are to be punished at all, crimes against the property of inventors should be punished as well as others. What security would there be for material property, if the owner had no remedy for trespasses against it, except the privilege of bringing a civil suit for damages, at his own expense? Every one can see that, in that case, property would be overrun with trespassers, who were irresponsible in damages, and who would commit their trespasses with the intent of getting what they could by them, and consuming it, so as to have nothing left, with which to answer the judgments, that might be obtained against them. It would therefore be an utter farce to pretend to protect property at all, without the aid of criminal laws. It would be equivalent to granting a free license to all irresponsible trespassers. Men might as well surrender their property at once, as to think of protecting it by civil suits merely; for they would consume their property in expenses, and would get protection, only when they had no property left to be protected. Yet this is the kind of protection, and substantially all the protection, which our laws, as at present administered, give to the property of inventors. And the consequence generally is, that the expenditure of time and money, required to protect an inventor in his rights, is such as to impoverish him, and make it impossible for him to protect himself to any considerable degree, even during the brief period, for which the government professes to protect him.
Cannot the public see that such things are a discouragement to invention and inventors? And can they not see that, if they wish to encourage inventors, and have the benefit of their inventions, it is plainly for their interest to give, to the property of inventors, the same protection of the criminal laws, which is accorded to material property?
2. It is objected that inventions, if secured to their authors, become monopolies, and therefore ought not to be perpetual.
The answer to this objection is, that all property is a monopoly. The very foundation and principle of the right of property are, that each man has a right to monopolize what he produces, and what is his own. The right of all men to their property, rests on this foundation alone. Monopolies are unjust and impolitic, only when they give to one what belongs of right to others. And it is only to such monopolies that the word monopoly is usually applied. It is an abuse of the term to apply it to a man's legitimate and rightful property. If an invention do not rightfully belong to him alone, who produced it, he of course should not be allowed to monopolize it. But if it do rightfully belong to him alone, then he has a right to monopolize it; and other men have no more right or reason to complain that he is allowed to monopolize it, than he has to complain that they are allowed to monopolize whatever is their own.
There is no more reason or justice, in applying the word monopoly, in an odious sense, to an invention, which one man has produced, and therefore rightfully owns, than there would be in applying the same term to any other wealth whatever, which one man has produced, and therefore rightfully owns. There is no resemblance at all between such monopolies, and those monopolies, which are arbitrarily created by legislatures; whereby they give to one man, or to a few men, an exclusive privilege to exercise a right, or practice an employment, which other men have naturally and justly the same right to exercise and practice. All such monopolies are plain violations of natural justice; because they take from one man a right that belongs to him, and give it to another. But an invention is the product of individual labor, and of right belongs to him who produces it; and therefore there is no injustice in saying that he alone shall have a right to it—the same right that he has to any other property lie has produced—that is, the right to exercise absolute dominion over it, and to do with it as he pleases, whether it be to keep it, sell it, or give it away.
This objection of monopoly, when applied to inventions, is mere sound without meaning. It has neither reason nor justice to sustain it. It is simply an odious name, wrongfully applied to a just and natural right, by those who want a pretext for taking a man's property from him, and applying it to their own use.
3. A third objection is, that if inventors were allowed a perpetual property in their inventions, they would become too rich.
This objection, if good against any inventors, can be good only against a very few, in comparison with the whole number; for but a few, if any, could ever acquire inordinate wealth by their inventions. It is certainly unjust to deprive the whole of their rights, simply to guard against extravagant fortunes on the part of a few. But our laws make no distinctions of this kind. On the contrary, they condemn nearly all to indiscriminate poverty, under pretense of preventing any from accumulating immoderate wealth.
If any are to be deprived of their right to a perpetual property in their inventions, clearly it should be those few, and only those few, whose wealth would otherwise become enormous. And even those few, it would be unjust to deprive of their property, the products of their honest labor, until their fortunes had actually reached the utmost limit, to which society sees fit to allow private fortunes to go. To deprive them of their property, before their fortunes have attained the legal limit, simply through fear that they may sometime go beyond it, would be a very absurd and premature robbery.
But what right has society to set limits to the fortunes, that individuals shall acquire? Certainly it has no such right; and it attempts to exercise no such power, except in the case of inventors. To all other persons it says, go on accumulating to the extent of your ability, subject only to this restriction, that you use only honest means in acquiring. Why should any other restriction be imposed upon the accumulations of inventors, than is imposed upon the accumulations of other men? Who has such a right to be rich as an inventor? Who gives such wealth to mankind as he? Certainly, if a man, who not only produces wealth as honestly as any other man, but who produces incalculably more than other men, and who virtually gives ninety-nine per centum of it, as a gratuity, to the public, cannot be allowed to become rich, who are the men who are entitled to that privilege? Other men, who produce hardly any thing, compared with an inventor, and who, if they can avoid it, give never a dollar of their earnings to mankind, without receiving a full dollar in return, are nevertheless allowed to acquire their millions, and indeed to accumulate without restriction, so long as they accumulate honestly. But an inventor, who creates immeasurably more wealth than any other man, and who reserves but one per centum of it to himself, giving the rest to the public, must be limited by law in his acquisitions, and deprived even of that one per centum of his own earnings, lest he become too rich!
Every valuable invention ought to give certain wealth to the inventor; the more valuable the invention, the more wealth should it bring to him. The most valuable inventions, should bring great wealth to the inventors. It is not only just to the inventors, but it is for the interest of society at large, that it should be so; because the production of inventions is stimulated, substantially in the ratio of the wealth of the inventors.
But is there really any danger that, if inventors were allowed a perpetual property in their ideas, any very enormous or immoderate wealth would accumulate in their hands? There are many, and probably insuperable, obstacles to such a result. Let us look at the subject somewhat closely.
In the first place, wealth, in the aspect in which we are now, considering it, is relative. A man is rich, or poor, in proportion as he has more or less than an average share of the wealth of the world. A man, who, in England, would have been very rich, relatively with his neighbors, five hundred years ago, would now, with property of the same nominal value, as then, be very poor, relatively with his neighbors; because his neighbors have now increased so much in wealth. In judging, therefore, whether inventors would become immoderately rich, under a system of perpetual property in their inventions, we must consider what would be the general state of wealth around them, under the same system.
We are to consider, then, that under that system, (of perpetual property in inventions,) the number of inventions would be very greatly augmented, and consequently the general wealth of society astonishingly increased. And it would consequently require vastly more actual wealth, to make a man relatively rich, than it does now. This single consideration will probably be sufficient, with most minds, to reduce the bugbear of enormous wealth, (on the part of inventors,) to about half its original dimensions.
In the second place, few inventions are very long lived. By this I mean that few inventions are in practical use a very long time, before they are superseded by other inventions, that accomplish the same purposes better. A very large portion of inventions live but a few years, say, five, ten, or twenty years. I doubt if one invention in five, (of sufficient importance to be patented,) lives fifty years. And I think it doubtful if five in a hundred live a hundred years.*
Under a system of perpetuity in intellectual property, inventions would be still shorter lived than at present; because, owing to the activity given to men's inventive faculties, one invention would be earlier superseded by another.
I think these considerations alone ought to diminish the bugbear again to one half its already reduced dimensions—that is, to one fourth its original size.
In the third place, the danger of overgrown fortunes is obviated by still another consideration, to wit, that few or no important inventions are brought to perfection by a single mind. One man brings out an invention in an imperfect state; another improves upon it; another improves upon the improvement, and so on, until the thing is perfected only by the labor of two, three, five, or ten different minds. The complete invention thus becomes the joint property of several different persons, who share in the income from it in such proportions respectively as they can agree upon. The obvious presumption is, that no single individual will ever derive a sufficient income from it, to give him a fortune immoderately, or grossly, disproportioned to the wealth of others.
I think it must be safe now to say, that the bugbear, that was at first so frightful, is no longer a thing to be seriously dreaded.
But a fourth consideration, which must absolutely annihilate the phantom, is this—that if any particular invention should be found to be a source of immoderate wealth to its possessors, that fact would be sufficient, of itself, to turn the minds of inventors, in the direction of that invention; and the result would soon be the production of one or more competing inventions, that would accomplish the same end by a different process; and either supersede the first invention altogether, or at least divide with it the profits of the business, to which it was applied.
I now take it for granted that the objection of inordinate wealth, on the part of inventors, has been fairly disposed of.
4. A fourth objection is, that if inventors were allowed a perpetual property in their inventions, their power would become dangerous to the liberties of the people at large.
This idea, although one that might naturally enough occur to an objector, will yet, on reflection, be seen to be wholly without foundation in reason. Political power depends principally upon the command of wealth; and therefore the considerations, that have just been stated, in answer to the objection of enormous wealth, on the part of inventors, are sufficient to show, that it would be the farthest thing from possibility, for an individual to monopolize enough of any one or more inventions, to give him any dangerous political power.
Another consideration, sufficient of itself to dissipate this danger, is, that the number of inventors would be great, and if any one of them should prove ambitious of a dangerous political supremacy, the power of the others would be sufficient to hold him in check.
Still another consideration is, that, in the nature of things, the people, who receive ninety-nine per centum of all the wealth created by inventions, can be in no danger from the power of inventors, who retain but one per centum of it. Every inventor, therefore, puts into the hands of the people, ninety-nine times more power than he retains in his own hands. How long a time would be requisite for him, to acquire absolute power over the people, by such a process?
A last reflection, worthy of notice, on this head, is, that inventors are not constitutionally ambitious of political power. Such a thing as a great inventor, ambitious of political power, was probably never known. Their ambition is of a far less depraved and vulgar kind. The triumphs, of which they are ambitious, are triumphs over nature, for the benefit of mankind; not over mankind, for the benefit of themselves.
Inventions, instead of tending to the enslavement of mankind, tend to their liberation, by putting wealth and power into the hands of all, and thus liberating each from his dependence upon others.
5. The fifth objection to the principle of perpetuity in intellectual property, is the objection of inconvenience.
It is no doubt an inconvenience, for a man to be under the necessity to buy an idea, when he wants it. But on the other hand, it is a great convenience to the producer of the idea, that he can command pay for it, from those who wish to use it. The inconvenience and the convenience to these parties respectively, are precisely the same, and no other, than they are to the buyer and seller of any other property. And the argument from inconvenience is just as strong, against allowing any right of property in material commodities, as it is against allowing any right of property in intellectual commodities.
But because a man has a natural right of property in every idea he originates, it is not therefore to be inferred, that every man would wish to retain his exclusive right to every idea, however unimportant, that he might originate, and demand pay of every one who wished to use it. It is only a few ideas, that have sufficient market value, to make it worth a man's while to make them articles of merchandise. It is only a few ideas, that would find any purchasers, if a price were set on them by the owner. If a man were to set a price on merely trivial ideas, he would find no purchasers. The result would be, that a man would retain his exclusive property, only in those ideas, that would sell in the market for such prices, as would make it worth his while to sell them. And for such ideas men can as well afford to pay, as for material things of the same market value.
A few words as to the effects of the principle of perpetuity upon literature.
Literary labor is controlled by the same law as other intellectual labor—that is, the nature of the market determines, in a great measure, the character of the supply. If the law allow an author but a brief property in his works, literature will be mostly of a superficial, frivolous, and ephemeral character; such as ministers to the appetite of the hour, and finds a rapid, but temporary sale—as, for example, romances and other works, which naturally have a short life, and which it requires but little thought or labor to produce. The prevailing literature will be of this kind, for the reason that this is the only kind which can be afforded. If, on the other hand, a perpetual property be allowed, encouragement is given to the production of a widely different class of works, namely, those profound, scientific, and philosophical works, which are written, not merely for the present, but for the future; and which, instead of pandering to the frivolities, fancies, appetites, or errors of the hour, seek to supplant and correct them, by creating and supplying a demand for more valuable knowledge. These works find fewer readers at first, than the others; and the prospect of a more lasting demand for them, is the only chance their authors have of remuneration for the greater labor required for their production. Under the present system, few such works are produced at all; and those generally at great sacrifices to their authors. But if a perpetual property in them were allowed, men, competent to produce them, could afford to produce them; for the reason that their copyrights, if sold, would bring a higher present price, or, if retained, would be good estates for them to leave to their children.
These profound works, which it requires great powers, great patience, and great labor, to produce, are the only works that really do much for the progress of the race, or the advancement of knowledge among men. They are indispensable to the rapid intellectual growth of mankind. Yet, like other things, the products of human labor, they can, as a general rule, be had only for money. The greatest minds inhabit bodies, that must be fed and clothed, like the bodies of other men. The wisest men, too, as well as the less wise, have families whose wants must be supplied. If these wants cannot be supplied by authorship, there is no alternative for these men, but to engage in some of the ordinary avocations of society. The consequence is, that many of the greatest minds, those, who ought to do, and who, under the principle of perpetuity in intellectual property, would do, much for the permanent enlightenment, and the lasting intellectual advancement of mankind, are now, from necessity, occupied in pursuits, for which smaller minds are amply competent—such as the common routine of professional and political life—in which pursuits, they passively adopt, act upon, and thereby promulgate, at best, only such common knowledge, and with it such common ignorance, as the public demand calls for in those labors. This they do, simply because the laws deprive them of the natural and just rewards of those higher labors, for which their capacities and their aspirations naturally qualify them. And they consequently pass through the world, doing little or nothing for its permanent welfare; and really living upon, and assisting to perpetuate, the ignorance, follies, crimes, and sufferings of mankind, solely because the laws virtually forbid them to live by removing them.
It would be easy to follow out this idea, and show more in detail what effect the perpetuity of intellectual property would have upon the progress of knowledge; but the principle is so self-evident, that it can hardly need any further illustration.
No objection can be made to the perpetuity of literary property, on the ground that authors would become extravagantly rich. The great competition among themselves; the short life, which most works would have; and the slow sale of those having a longer life, would all conspire to make it impossible for authors to acquire great wealth. In this respect they would differ from inventors.
Enough has probably now been said, to show that authors will enlighten, and inventors enrich, mankind, if they can but be paid for it, and not otherwise.
Manifestly it cannot be for the interest of mankind, to starve and discourage authors and inventors, if science and art, like all other marketable commodities, are really produced just in proportion to the demand for them, and the prices they bear in the market. Mankind have abundant need of all the knowledge, and all the wealth, which authors and inventors can furnish them. And they can certainly afford to pay for them, at the low prices, at which knowledge is offered by authors, and wealth by inventors; for there are no other means by which such knowledge and such wealth can be obtained so cheaply. Why, then, do not mankind purchase and pay for them at these prices, instead of striving to live upon such a supply only, as they can obtain by niggardly purchases, and dishonest plunder? There is certainly as little sound economy, as sound morality, in the course they pursue on this subject. Why, then, do they continue in it? My own opinion is this.
It is not that mankind at large are so willfully dishonest, as to wish to deprive authors and inventors, any more than other men, of the fruits of their labors. It is contrary to nature, that mankind at large should be, either so unjust, or so ungenerous, to their greatest benefactors. Neither is it because they are willfully ignorant of their own true interests in the matter; for it is contrary to nature that any man, honest, or dishonest, should be willfully ignorant of his own true interests. But it is because they are deceived, both as to their own interests, and as to the just rights of authors and inventors, by those who are interested to deceive them.
Who, then, are the parties, who are interested to deceive the people at large, as to the true interests of the latter, and as to the just rights of authors and inventors? There are at least three classes. First, the whole class of pirates, who have a direct and powerful pecuniary interest, in plundering authors and inventors; because they thereby put into their own pockets some portion, at least, of that wealth, which would otherwise go to the authors and inventors themselves. Secondly, men ambitious of the reputation and influence of wealth, who fear that their wealth may be eclipsed by the wealth of inventors. Thirdly, political men, ambitious of intellectual reputations, who fear that their own would be eclipsed, as they really would be, by the reputations of both authors and inventors. The services rendered to mankind by great authors, and great inventors, are so incomparably superior, in brilliancy, permanency, and value, to any that can be performed by political men, (with possibly here and there a rare exception,) that it is not to be expected that the latter, with whom ambition is a ruling passion, should look with favor on such rivals as the former.
There are, then, three classes of men, who have a special and selfish interest to decry the rights of authors and inventors; and to deceive the people at large in regard to them. And they do it by such bugbears and sophistry, as have been exposed in the preceding pages. The influence of the two latter classes is especially powerful; for they have a direct, and nearly absolute, control over legislation. And it is probably owing to the jealousy of these two classes, more than to all other causes, that the rights of authors and inventors have not been already acknowledged. The nobility of England, for example, whose wealth and power are hereditary, and founded on no personal merit or service, compose one branch of the legislative power of England, and have great influence in the election and control of the other; and they doubtless have sagacity enough to see, that the principle of perpetuity in intellectual property, would soon raise up a generation of authors and inventors, the latter of whom would rival them in wealth, and both of whom would wholly eclipse them in deeds commanding public admiration and gratitude; and both of whom also would contribute powerfully, and probably irresistibly, to prostrate their usurped and iniquitous political power. It is not therefore to be expected that the House of Lords, or those whom they can control in the House of Commons, will ever legislate for the principle of perpetuity in intellectual property. And the principle may perhaps triumph, in England, only on the ruins of existing political institutions. On the continent of Europe, there are obstacles to be overcome, in the jealousies of wealth, and of hereditary and tyrannical rulers, of a similar nature to those in England. In the United States, the obstacles are not so palpable, and probably not so great. But they are nevertheless such as are not to be despised. In all countries, they are doubtless such, as can be overcome, only by disseminating widely among the people the true principles of law, and the true principles of political economy, applicable to the question.
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