Ayn Rand’s “Patents and Copyrights”, The Atlas Society

To set up the climax of her 1943 novel, The Fountainhead, Ayn Rand had her protagonist, the genius architect Howard Roark, make a deal with Peter Keating to design Cortlandt Homes, a planned government housing project making headlines. Keating, who was a mediocre architect at best, wanted to win the prestigious commission, and he asked Roark to ghost a winning design. Roark agreed to the request under one very specific condition: that the housing project be built exactly as Roark designed it.

Roark explained to Keating the terms of the deal this way:

Peter, I love this work. I want to see it erected. I want to make it real, living, functioning, built. But every living thing is integrated. Do you know what that means? Whole, pure, complete, unbroken. Do you know what constitutes an integrating principle? A thought. The one thought, the single thought that created the thing and every part of it. The thought which no one can change or touch. I want to design Cortlandt. I want to see it built. I want to see it built exactly as I design it.

Roark drafted a contract, which both men signed. Both men understood that the contract was not legally binding, but Roark made clear that he would not suffer the contract to be breached. Roark would design Cortlandt Homes, and Keating would take credit for the design, on the condition that the housing project be built exactly as designed. If Keating should renege, if he should alter or allow to be altered the design in anyway, Roark would publicize the fraud.

Roark agreed to help Keating rather than submit a design himself because he had been blacklisted by a cadre of journalists and academics. But even though Roark would not be listed as the architect of the building, he had a natural right to it, and he followed through on his word to publicize the fraud when Keating broke the contract and changed the building design. At the novel’s climax, Roark is on trial for destroying the altered building with a bomb.

Roark pled not guilty and argued his own defense. The idea for Cortlandt was his, Roark told the jury. It came from the creative faculty of his mind. “This creative faculty,” he explained, “cannot be given or received, shared or borrowed. It belongs to single, individual men. That which it creates is the property of the creator.” Because it was always his property, because it was to be used only under the conditions he specified, Roark claimed the moral right to destroy the building. The terms of use that Roark set were not met: “I agreed to design Cortlandt for the purpose of seeing it erected as I designed it and for no other reason. That was the price I set for my work. I was not paid.”

Because Ayn Rand wrote The Fountainhead, Roark was acquitted.

In real life, Ayn Rand did not recommend blowing up buildings, but Howard Roark’s defense contains the core of her views on intellectual property.

Ayn Rand established the Objectivist position on copyrights and patents in her 1964 essay “Patents and Copyrights,” originally published in The Objectivist Newsletter and later included in the 1967 anthology Capitalism: The Unknown Ideal. “Patents and copyrights,” she wrote, “are the legal implementation of the base of all property rights: a man’s right to the product of his mind.”

All productive work, she continued, requires an individual both to think and to translate his thoughts into material form. For Rand, patent and copyright laws to protect intellectual property are necessary to “protect the mind’s contribution in its purest form: the origination of an idea.”

It is not an idea alone that a copyright or patent protects, Rand clarified. Copyrights and patents protect the property right of the originator to the idea realized in material form and forbids the unauthorized reproduction of that form:

Patents and copyrights pertain only to the practical application of knowledge, to the creation of a specific object which did not exist in nature – an object which, in the case of patents, may never have existed without its particular originator; and in the case of copyrights, would never have existed.

Rand makes an important distinction between an invention and a discovery, arguing that a discovery, for ethical reasons, can’t be patented.

It is important to note, in this connection, that a discovery cannot be patented, only an invention. A scientific or philosophical discovery, which identifies a law of nature, a principle or a fact of reality not previously known, cannot be the exclusive property of the discoverer because: (a) he did not create it, and (b) if he cares to make his discovery public, claiming it to be true, he cannot demand that men continue to pursue or practice falsehoods except by his permission. He can copyright the book in which he presents his discovery and he can demand that his authorship of the discovery be acknowledged, that no other man appropriate or plagiarize the credit for it – but he cannot copyright theoretical knowledge.

As in the example from The Fountainhead above, a creator, Rand argued, has a natural right to his creation. The patent or copyright is not granted by government. A creator’s property right to his creation is instead secured by government. Rand also made clear that writers and inventors are not obligated to copyright or patent their creations. They are at liberty to distribute their work as they see fit, even if that means giving it away. Copyright and patents are legal certification of the property rights and can be used to prevent unauthorized reproduction of the work or, if necessary, to demand compensation for such.

Nevertheless, Rand believed that those property rights could not be exercised in perpetuity. “No debt,” she reasoned, “can be extended into infinity.” Unlike material wealth, intellectual property cannot be transferred to subsequent generations: “By the very nature of the right on which intellectual property is based––a man’s right to the product of his mind––that right ends with him.” This termination of property rights is how works of art and literature become part of the public domain. Heirs can continue to collect royalties, but they no longer control the reproduction of the work.

The reason for the limitation on patents and copyrights is that perpetual rights would stifle innovation.

Rand considered the provision of the lifetime of the author plus fifty years, a timespan set down in Great Britain’s Copyright Act of 1911, to be the appropriate time to hold a copyright. The time limit on patents is trickier. Rand did not specify a particular number of years, but emphasized that it be set case by case:

The difficulty lies in defining the inventor’s specific rights without including more than he can properly claim, in the form of indirect consequences or yet-undiscovered implications. A lifetime patent could become an unjustifiable barrier to the development of knowledge beyond the inventor’s potential power or actual achievement. The legal problem is to set a time limit which would secure for the inventor the fullest possible benefit of his invention without infringing the right of others to pursue independent research. As in many other legal issues, that time limit has to be determined by the principle of defining and protecting the individual rights involved.

Rand’s position on intellectual property is unique. She took issue, for example, with the collectivist copyright bill of 1976 that allowed public television and radio stations in the United States to expropriate and use at their own discretion the intellectual property of others at a price set by a public board rather than the owner. Rand called the bill “unspeakably evil.” It bothered her tremendously that it allowed taxpayer-funded bureaucrats to both usurp the rights of artists to their property and to devalue that property as a result.

Her position also differs from that of the libertarian Murray Rothbard. Rothbard agreed with Rand that creators have intellectual property rights. He had no quarrel for example with an author’s right to his book. Rothbard was skeptical however of rights to inventions due first to a closer equation of discovery and invention than Rand held and second to the problem of simultaneity. It would be virtually impossible for two people to write the same book, word for word, simultaneously. Nevertheless there is a reasonable likelihood that two people could independently develop an invention based on their individual observation of natural laws.

At one point, Rothbard considers reversing the designation of patents and copyrights. Patents generally protect inventions, and copyrights protect artistic and literary works. In Man, Economy, and State, Rothbard proposed that artistic creations be protected by patents and inventions by copyright:

The application of patents to mechanical inventions and copyrights to literary works is peculiarly inappropriate. It would be more in keeping with the free market to be just the reverse. For literary creations are unique products of the individual; it is almost impossible for them to be independently duplicated by someone else. Therefore, a patent, instead of a copyright, for literary productions would make little difference in practice. On the other hand, mechanical inventions are discoveries of natural law rather than individual creations, and hence similar independent inventions occur all the time. The simultaneity of inventions is a familiar historical fact. Hence, if it is desired to maintain a free market, it is particularly important to allow copyrights, but not patents, for mechanical inventions.

Thus a patent, Rothbard asserts, would protect artists and writers from the unauthorized use of their work, since there is little likelihood that anyone would have produced a similar product unless he stole the idea. The problem with patenting an invention, for Rothbard, was that two or more individuals could and did arrive simultaneously and independently at a discovery/invention.

Rothbard considered patents on inventions inconsistent with the free market: “The crucial difference is that copyright is a logical attribute of property right on the free market, while patent is a monopoly invasion of that right.” Rothbard explained:

The patent is incompatible with the free market precisely to the extent that it goes beyond the copyright. The man who has not bought a machine and who arrives at the same invention independently, will, on the free market, be perfectly able to use and sell his invention. Patents prevent a man from using his invention even though all the property is his and he has not stolen the invention, either explicitly or implicitly, from the first inventor. Patents, therefore, are grants of exclusive monopoly privilege by the State and are invasive of property rights on the market.

Ayn Rand anticipated such an argument. Again, Rand did not consider either patent or copyright to be rights granted by the state. Rather, she held that the right of an artist or inventor to his creation was a moral one. It was a natural right that the government only secured in its most basic function of protecting the property rights of citizens. For her, the fact that one person was first to file for a patent was just the breaks:

This type of objection is based on the error of equating the potential with the actual. The fact that a man might have been first does not alter the fact that he wasn’t. Since the issue is one of commercial rights, the loser in a case of that kind has to accept the fact that in seeking to trade with others he must face the possibility of a competitor winning the race, which is true of all types of competition.

Some libertarians want to abolish copyrights and patents altogether, but not intellectual property. The anarchist George H. Smith, for example wishes there were a good reason for such protections, but he remains unconvinced. Like Rand, Smith considers intellectual property rights moral ones, arguing, for example, that plagiarism – willfully claiming that someone else’s work is your own – is immoral. But he argues that the prevention of plagiarism is an individual responsibility, and he does not think that wanting protection is a good enough reason to accept a government.

Some libertarians want to abolish copyrights, patents, and all intellectual property. Stephan Kinsella’s Against Intellectual Property, for example, argues that the market has an equal right to an individual’s intellectual property, the value of which, since it is “not scarce” consequently becomes very low. This argument, ironically, is very similar to the collectivist copyright bill of 1976 substituting as it does the “market” for the state.

Kinsella claims that intellectual property doesn’t need protecting because it isn’t scarce:

If you have a copy of a book I have written, I still have the original (tangible) book, and I also still “have” the patterns of words that constitute the book. Thus, authored works are not scarce in the same sense that a piece of land or a car are scarce. If you take my car, I no longer have it. But if you “take” a book-pattern and use it to make your own physical book, I still have my own copy.

This rather sophistic argument from scarcity discounts the time and effort involved in creating intellectual property, asserting as it does that the invention, artwork, or book appeared Platonically out of thin air. But time is one thing we can’t get more of, and we certainly can’t get our time or effort back after it has been spent. Moreover, the reduction of intellectual achievement to pattern making demonstrates a level of contempt for creative work that Ayn Rand, on behalf of creators, rightly abhorred. It is as if to say not that Stephan Kinsella wrote the book Against Intellectual Property but, rather, that a guy organized some patterns on paper for us to read.

Kinsella also argues that keeping intellectual property out of the commons costs society because producers can’t draw on those creations for their own production. The argument echoes Point Three of Directive 10-289 in Atlas Shrugged:

All patents and copyrights, pertaining to any devices, inventions, formulas, processes and works of any nature whatsoever, shall be turned over to the nation as a patriotic emergency gift by means of Gift Certificates to be signed voluntarily by the owners of all such patents and copyrights. The Unification Board shall then license the use of such patents and copyrights to all applicants, equally and without discrimination, for the purpose of eliminating monopolistic practices, discarding obsolete products and making the best available to the whole nation. No trademarks, brand names or copyrighted titles shall be used. Every formerly patented product shall be known by a new name and sold by all manufacturers under the same name, such name to be selected by the Unification Board. All private trademarks and brand names are hereby abolished.

Kinsella’s reasoning moreover contradicts the claim that there is no scarcity in the first place. If creative output really is cheap and interchangeable, a restriction on one intellectual property would be made up by the many other similar, cheap, and easy ideas still available.

While touted as a free market measure, the unintended consequences of the weakening of intellectual property have fostered a mindset of collective entitlement. Artists and writers and inventors owe us, the argument goes, but we in turn don’t have to work or pay to access their creative output. This mindset goes part and parcel with similar demands for free health care and education, free lunches and a guaranteed income. The damage caused by the long-term erosion of property rights to which the weakening of intellectual property has contributed far outweighs any short-term lag on innovation that copyrights and patents may produce. As collectivism grows in popularity, and as the nonproductive consider themselves increasingly entitled to the wealth created by the productive, Rand’s arguments in favor of intellectual property rights merit reinforcing not diminishing.

Rand for her part recognized that arguments against copyrights and patents would have ramifications beyond a particular work of art or invention. Ultimately Rand understood that arguments against copyrights and patents would elevate collectivism over individual liberty: “The collectivists seem to realize that patents are the heart and core of property rights, and that once they are destroyed, the destruction of all other rights will follow automatically, as brief as a postscript.” She wrote those words in 1964, likening the assault on patents and copyrights to a “spectacle of mediocrity scrambling to cash-in on the achievements of genius.”