Prof. Robert P. Merges, University of California at Berkeley School of Law
March 27, 2015
For many in the field of intellectual property law (IP), my article title would be either a wry joke or the lead-in to one of the world’s shortest articles. (Its full text would read: “No.”) I, however, am going to make the case that there is a sense in which IP is indeed a fundamental right. To get there, I need to start with the reigning champion of political theory, John Rawls, who wrote the book on the role of rights in the foundations of a fair society. By the end, I will not only show that IP is a fundamental right; I will point to actual binding legal decisions that depend on this notion for their holdings. The status of IP, we will see, is not just of philosophical interest. It has some real-world implications.
Starting Point: John Rawls
To answer the question of the title we first need a definition of fundamental rights. One classic starting point is the work of philosopher John Rawls, whose Theory of Justice sets out a comprehensive description of the makeup of a just society. Rawls begins with a hypothetical procedure, the “original position” in which future citizens negotiate behind the famous “veil of ignorance.” Rawls claims that out of this procedure will emerge two basic principles. The first principle reads as follows: “Each person is to have an equal right to the most extensive total system of basic liberties compatible with a similar system of liberty for all.”
In general this first principle (or “liberty principle”) includes what are considered essential civil rights in modern constitutional democracies: freedom of speech, freedom to exercise one’s religion, and so forth. What is distinctive in Rawls’s thought is the thorough and systematic understanding that these abstract rights are of little practical value for people who are destitute. Thus his second principle, which addresses inequalities in society. The idea is that once basic liberties are established, resource equality serves as a moral baseline, and deviations from it must be justified. We will not dwell on the second principle here, but of course a defender of IP rights must traverse this principle as well if he or she is to argue that IP forms part of a just society.1
Rawls and Property
The first principle includes among the protected liberties the right to hold at least some property. This is a very restrictive aspect of basic liberty, however. Rawls limits the right only to items of what he called “personal property,” and he excludes from this right all forms of “productive property.” In his later book, Political Liberalism, Rawls gave a somewhat more detailed account of “personal property”:
Among the basic liberties of the person is the right to hold and to have theexclusive use of personal property. The role of this liberty is to allow a sufficient material basis for a sense of personal independence and self- respect, both of which are essential for the development and exercise of the moral powers.
Personal property thus appears to mean those belongings that are essential for an effective private, personal sphere – one’s toothbrush and basic clothing, certainly; dishes, cookware, basic tools, and the like, almost for sure; but a personal dwelling, means of transportation, and more elaborate possessions, possibly not. Rawls also reinforces this idea that property is not fundamental when, in Political Liberalism, he says that the determination of property relations is left to the “legislative stage” of social formation.2
There are two ways to push for a fundamental right to property within the Rawlsian framework. One is to expand the definition of “personal possessions” to include the sorts of things that IP covers. The other is to say that Rawls was just mistaken to be so restrictive in the types of property he thought of as a basic liberty – to in effect expand the types of property that are included in the list of basic liberties.
There is some room for the first argument. IP rights, after all, cover ideas and creative works that are in some sense more personal than many types of property. They have long been associated, particularly in continental Europe, with a conception of property as an institution designed to protect expressions of the individual personality, and allow persons to reach their full developmental potential.3 Even so, many IP-covered works are the product of team production; many are also quite prosaic (user manuals, computer software, gadget inventions, inventions related to industrial machinery, etc.). Thus, while it might be conceivable to extend the notion of personal property somewhat, it also seems too much of a stretch to do it comfortably for much IP.
So we are left arguing that property is more fundamental than Rawls thought. I think it is clear that Rawls was wrong to exclude all non-personal property from the list of basic liberties guaranteed by the first principle. His mistake stems primarily from his desire not to take sides in what was then (in 1971) a lively debate: whether socialism or capitalism was the superior economic system. Non-personal property, which Rawls called “productive property,” is of course the key variable at play in this debate. We know now that history, unlike Rawls, took sides decisively in this debate, and that capitalism won, hands-down. Central planning was just not a match for decentralized economic activity, which is facilitated and mediated by property rights. In a word, it is now understood quite well that the individual autonomy fostered by private property is an indispensable part of a well-functioning society. More importantly for present purposes, the social good that property leads to is inextricably tied to its nature as a fundamental right.
This is because the key social benefit of property, decentralization, is simply the aggregated effect of the individual autonomy fostered by property rights. Market economies resist centralization because ownership entitlements – property rights – are strong; they are not easily overridden by the state. Put simply, property is a fundamental right because personal autonomy is a fundamental value.
On to IP
Once the link between property rights and autonomy is established, it is then a small step to include IP. Indeed, from this perspective, IP is an especially desert-worthy form of productive property that surely ought to be included and protected in the basic structure of a fair society. This assumes IP is “really” property, of course; but I think it surely is, and this is not the place to rehearse this somewhat tired debate.4 In Rawls’s terms IP might even be described, because of its closeness to the individual creator in many cases, as personal-productive property, a sort of Rawlsian hybrid. Even if it is merely another form of productive property, however, IP still has a place at the table.
So then, if you’ve stayed with me so far, IP is a fundamental right. So what? In the Rawlsian scheme, this means that IP rights cannot be “trumped” by redistributive concerns. Rights come before the redistributive claims of fairness. This is what it means for them to be fundamental.
This is right about the time when many readers – perhaps most – start to smell a libertarian harangue in the making. Property is fundamental, it cannot be touched by the state, get the government out, bring on the miniscule night watchman state, and so on. But this is not my point at all. Property is fundamental, but that does not make it absolute. It is not impossible for the state to shape it and affect it – merely more difficult than if it were not a right.
Fundamental but Not Untouchable
To say that property is fundamental is to say the state must assure this aspect of each citizen’s liberty. But this assurance need not be absolute. There are in fact three ways the state gets involved with property beyond this basic assurance. First is at the grant stage, when the state may require citizens to prove and perfect their property claims. To be sure, fair and accessible procedures must be made available for this. But once they are established it is up to the individual claimant to successfully navigate them. Unlike free speech or other liberty interests, property must be regulated and tracked. This is especially so with IP rights, which are both intangible (and thus hard for third parties to discern in many cases) and of limited terms. (Term limits do not mean IP is somehow not fundamental; the existence of the right must be assured in a Rawlsian state but the scope and term need not be infinite for the right to be realized.)
The second stage of state involvement comes post-grant. The state may regulate the deployment of property rights to make sure they are not put into the service of socially destructive activities. So, for example, doctrines such as patent and copyright misuse, or antitrust action against anticompetitive uses of IP rights, are proper subjects of state activity.
Third is taxation, which in many cases is the primary mechanism of redistribution. Taxing the proceeds of IP-related economic activity in no way undermines the fundamental nature of IP rights. As always, extreme or confiscatory taxation is another story.
Applying the Theory: IP As a Human Right
Traditionally, it was thought that IP, far from being some sort of fundamental right, was in fact deeply at odds with at least some fundamental rights – those involving basic ethical, economic, and social rights of citizens, i.e., human rights.5 In Europe at least, however, this traditional antagonism has recently undergone a striking reversal. Despite critics who resist treating IP as a human right,6 the European Court for Human Rights (ECHR) has in recent years recognized that IP is, indeed, a form of property, and thus falls under the protection of Article 1 of the European Human Rights Convention.7 In the Anheiser-Busch case from 2007, the ECHR decreed that both issued trademarks and trademark applications are forms of property protected by the Human Rights Convention. To be precise, the ECHR said that trademark rights (and presumably other forms of IP) fall within the guarantee of “the peaceful enjoyment of … possessions.”8 This followed similar rulings from several national courts in European countries.9
Thus probably the preeminent court that speaks to human rights has assimilated IP into the basic right to property. Though this right has been interpreted to apply to many other forms of property,10 these cases represent a first. They are the first real application, under operative law, of the idea that IP is something like a fundamental right.
At the same time, however, the European rulings also reflect the point made earlier. IP rights are far from absolute. For example, the holding in the Budweiser case was that the government of Portugal had not violated Budweiser’s property rights by entertaining a registration opposition from the holder of a previously registered geographic indication for “Budweiser Bier.” Thus, though IP rights are fundamental, state procedures for registering them and challenging them may be legitimate without undermining the basic nature of the right. Indeed, one view of the European trend is that the fundamental right to IP is tied mostly to the availability of adequate enforcement mechanisms. Perfecting property rights may be subject to a significant amount of state control consistent with the right to hold IP as property. Violations of the fundamental right would come then mostly in the form of inadequate enforcement.11
In summary, there is a reasonable case that IP really is a fundamental right. This view can be squared with the essential theory of John Rawls, though requiring a bit of an extension of his own approach. And it has reached the point where it is recognized in at least one important forum, the European Court of Human Rights. The further extension and elaboration of this notion is yet to come, but we have at a minimum now crossed the threshold.