The basic moral principle which I discuss here is:

It is a good thing if people who create and publish information which benefits other people receive some payment for their efforts.

(Note: I use the word "publish" here, not so much to refer to publishers instead of authors, but to highlight the fact that if information is not published, then it cannot be of benefit to anyone. Or, in the case of trade secret, which can be used without publication, the creator of the information derives the benefit directly, and does not need to be separately rewarded for its creation.)

### Clarification: "A Good Thing"

There are several reasons why we can consider it a "good thing" to reward people who create and publish beneficial information:

- It seems reasonable that people who do something to benefit others should receive some benefit in return.
- Paying people who create (and publish) beneficial information will motivate them to create it and publish it.
- Given that some types of beneficial information are very expensive to produce, paying those who create it will enable such information to be created.

### Two Refinements

We can refine the proposition by being more specific about where payment might come from, and how much payment an information creator should receive:

- Ideally, the payment for any particular beneficial information should be made by those people who derive the most benefit from the information.
- Ideally, the payment to those who create and publish beneficial information should be in proportion to some measure of the benefit that the information gives to those who benefit from it.

### Specific Examples of "Beneficial Information"

Given that this article is about copyright and patents, it is useful to consider the specific types of beneficial information relevant to these two types of intellectual property:

- Creative works, generally either entertaining or informative, which are consumed directly by a process of reading, viewing, listening or some combination of those three things. An important modern extension to the concept of a creative work is those creative works that are "consumed" by being processed by a computer system, either as data to be processed by some software, or as software to be executed (although the execution of software is really just a very special type of data processing).
- Inventions, which are ideas about how to do something or make something, in order to solve some problem.

### The Defensibility Of The Basic Proposition

I claim that this proposition is highly defensible, and that few people would dispute it, whatever their views on intellectual property.

The proposition can be considered to be a direct consequence of the more general observation that people who do things which benefit others, which may or may not require some effort and cost on their part to produce that benefit, deserve to be rewarded, in some way, for their efforts.

### What The Proposition Does Not Say

- The proposition is not that creators and publishers of beneficial information must be rewarded, only that it would be a "good thing" if they could be. It may be, and this is perhaps the most important point I wish to make, that any particular method of rewarding such creators might cause more harm than it does good.
- It is not a proposition about intellectual property. It is a proposition relevant to the concept of intellectual property, but it is not about intellectual property. It is not about intellectual property because, although intellectual property may indeed satisfy the proposition, intellectual property is not necessarily the only way of satisfying the proposition, and also, intellectual property may cause more harm than it does good.

## Intellectual Property

In some ways, this proposition is the strongest claim that can be made in favour of intellectual property, and it is typically invoked, either implicitly or explicitly, in most situations where someone is defending the existence of intellectual property, or of measures taken to enforce intellectual property.

However, intellectual property is one possible method by which creators can be rewarded for their efforts. We can think of intellectual property as being a legal system which is one possible implementation of this moral proposition.

The basic idea of intellectual property is that a particular item of information can be asserted to be similar to a physical object, in the sense that the person who creates an object owns that object, and as its owner, that person gets to decide what can be done with that object.

There is really only one difficulty with this concept, which is that information is not like a physical object.

In particular, given the existence of modern digital technology, and the ability to encode most forms of "beneficial information" digitally, the cost of making copies of information is practically zero. Which is not true for any type of physical object.

Yet, for intellectual property to work, we have to deem that all copies and all derived works are also "owned" by the original creator of the information.

### Why Intellectual Property May Not Be A Satisfactory Implementation Of The Moral Proposition

Intellectual property seems to successfully satisfy the moral proposition that it is a good thing to reward creators and publishers of beneficial information:

- It assigns rights to creators, which gives those creators the ability to receive payment in return for their efforts.
- Creators receive payment by licensing the information they have created to be used or consumed by those people who would most benefit from the information.
- The amount that creators can expect to receive is determined by how much those paying for a license are willing to pay, which is in turn related to the expected benefit.

However, there are two major costs associated with intellectual property, both of which are related to the fact that information is not like physical objects. Firstly, there is monopoly inefficiency:

- Every item of intellectual property is a monopoly on the use of the information which forms that intellectual property.
- If the owner of the intellectual property is to receive payment for use of that information, they must necessarily set a price on the use of the information.
- Where the information has a useful digital form, this price will be many times higher than the near-zero cost of making copies of the digital form.
- The "owner" may choose to disallow some uses of the information altogether, or at least reserve the right to license new uses of the information at some price higher than the price set for those uses that have previously been licensed.
- It follows that all potential purchasers of a license to use the information who would receive a benefit less than the set price (but still more than the near-zero cost of making a copy), will not be able to derive any benefit at all from the information. This loss represents the amount of the monopoly inefficiency.

Secondly, there is the cost of enforcement:

- The rights of the owner of intellectual property include the right to prohibit the copying of any digital form or derivative of that information.
- But, there is no practical means to prevent such copying between private individuals who own computers, and who may or may not be connected to the internet (if they are not connected to the internet, it is still relatively easy to copy digital information using private network connections or removeable storage media).
- To successfully enforce the rights of intellectual property owners, it would be necessary to destroy, ban or at least substantially disable most existing digital technologies including computers and the internet.
- Doing any of these things would carry a very high cost for society as a whole, in as much as we would be deciding to deprive ourselves of the benefits of computers and the internet, in order to maintain the pretence underlying the concept of intellectual property that information can be treated as if it is a physical object controlled by its owner.

## Why All This Matters

There is a "war" going on between intellectual property and "digital freedoms", that is, the freedoms to use general purpose computers, and the freedom to use the internet.

Because the moral defense of intellectual property depends so much on the idea that creators of information "deserve" to be rewarded for their efforts, those who defend digital freedoms have a tendency to dismiss the importance of this moral proposition.

This gives those who defend the concepts of intellectual property, and who advocate measures to "protect" intellectual property, the opportunity to claim that those people against intellectual property are defending an essentially immoral proposition.

Thus, to defend digital freedoms, we have to confront this moral proposition. We cannot just avoid it or dismiss it.

I will go further, and say that we have to acknowledge it, and concede its validity.

Then we have to point out that even though it is a good thing if creators are rewarded, it may still not be a good thing to have intellectual property, because the costs of intellectual property may be unacceptably high.

If it turns out that, indeed, the costs of intellectual property are too high, and cancel out any expected benefit from having intellectual property, we then have two choices:

- We decide not to have any legal system which forcibly "rewards" creators of beneficial information, accepting the consequence that this may result in less creation of beneficial information by those who might have created it if they could have been paid to do so, or,
- We construct some other legal system for rewarding creators of beneficial information, where that legal system does not depend on the ability to prohibit the copying of digital information from one computer to another.

## Conclusion

In conclusion:

- We have to acknowledge and accept the proposition that it is a good thing if the creators and publishers of beneficial information are rewarded in some way for their efforts.
- But, even though it is a good thing to reward creators, and even though intellectual property is a system which is designed to reward creators, intellectual property may not be a good thing.
- Furthermore, given that intellectual property has two major costs, which are both related to the fact that modern digital technology gives us the ability to copy most items of "beneficial information" for a cost close to zero, even if intellectual property has been a good thing in the past, it may not be a good thing now and in the future, especially with respect to those types of information which can be encoded or used in purely digital form. (In practice this means all books, pictures, music, video and all "software patents".)

And ...

- If intellectual property might not be a good thing, but rewarding creators of beneficial information is a good thing, we should consider the possibility that there may exist some alternative method for rewarding information creators, a method which does not carry the same costs that intellectual property has, even though it might may not be quite as satisfactory as intellectual property would be for allocating compensation to those who most "deserve" it.

I would go as far as to say that it would be immoral not to consider the possibility of such an alternative.