The Journal of Intellectual Property Law and Practice posts in its editorial a moving lamento "IP and the moral maze" for todays missing moral in the justification of IP rights. In just ten years the IP world has gone from a fixed set of axiomatic beliefs centered around the two propositions "using another's intellectual creation so as to obtain a gain at his expense is unfair" and "intellectual creation is entitled to legal protection in exchange for the disclosure of its intellectual content to the public" into a moral mess.
For todays situation Jeremy Philips laments "patents are increasingly regarded as the privilege of the greedy few" .. "Within the sphere of brands we are now informed by learned reports commissioned by the European Union that counterfeiting is good for consumers, good for the economy, and good for brand owners", in another matter "if copyright infringement is now so easy to commit and we all have the equipment to infringe it, we should legitimize it so that people do not feel bad about what they are doing" Coming to a heartshaking end:
Where, then, are the moral arguments that support IP rights, just as they support a man's right to his home, the clothes on his back, and the privacy of his personal thoughts and feelings? And where are the philosophers who are prepared to identify the moral propositions on which the IP system has hitherto been based, at least in part? Or has IP become so morally bankrupt that there none prepared to stand up and defend it?
Of course, Jeremy Philips is a learned man, and so I will refrain from the niddly-fiddly pecking about copyright misuse, ongoing legal battles on spurious claims, the strange role of the RIAA, lobbying efforts etc. I only want to hint on a small one: Philips mentions copyright infringement in a line with "motoring speed limits, parking restrictions, fare-dodging"; if copyright infringements were actually treated in law and lobbying like speed limits, and not like bankrobberies, the public legitimacy of the law would be much higher. But, to be serious, coming to the heart of the matter, these happenings are just white noise, distorting the real questions.
Not caught up in a moral maze: a sheep.
Is IP morally bankrupt? And where are the moral propositions on which the IP system has hitherto been based? But even ten years ago, this question was less easy to answer then it seemed at that time. Copyright (and patent law and..) in its historic form was a hard fought political compromise, the standard-justifications - Locke, Diderot, Edward Young, Kant - could already be refuted on philisophical grounds at the time being. Still, they bear an intuitively convincing appeal by connecting the lone man or woman with her creation, the fruit of her labour, the work which is intrinsically linked to her persona. It is indeed amazing that this notion seems to have hardly any moral credibility today.
Jeremy, as a man of impressive education and knowledge, you certainly know about the less than beautiful coming into the world of the Statute of Anne, know of Millar v. Donaldson, where the House of Lords explicitly denied a natural right in intellectual creations. You know that modern copyright law came into existence, to end the system of the greedy few who lived happily on royal grants. Know that the publishers innovation to secure at least parts of their rights, was to include the author into the system, and to put some limitations into the law. Maybe you know about the German patent law debate of the 19th century when patent proponents could only turn the tide by relying on economic arguments and abandoning the moral sphere. You know of course that economic arguments have in their heart a moral argument as well: "the greatest good for the greatest number" is a moral claim, not a natural law.
And so, we have at least three rival moral claims: the man and his home, the greatest good, and the post-Jeffersonian claim that information should spread like light. In its glorious time IP was able to combine these claims, to take care of the lonely inventor, claim to be market efficient and - per its innovations like limited duration and publishing obligations - IP could have a justified claim to spread knowledge.
And yes, Jeremy Philips, in the last decades the situation of the single author and inventor in regards to his employer or publisher has become worse; and yes, new empirical studies strongly suggest that IP in its known form is far from efficient, and the claim to spread knowledge through IP has been thoroughly shattered by the IP proprietors itself.
It is possible, it really should be done, to battle the sole market-morality now brought forward in these debates. But to do so, first needs some proponents who still can gain trust and who haven't already lost all their moral capital. And one needs some kind of system where the author and inventor really has a claim next to the greedy few, a system which can actually rightfully say that it helps to spread knowledge like light. This time could be right time to fight for a new Statute of Anne. And IP will live forth in some form; but I am pretty sure it won't be the form we have today.