property is communal, they are not used efficiently. Private property guarantees that scarce goods will be put to their most efficient and productive uses. From this point of view, however, it is difficult to justify intellectual property rights, since these rights do not arise from the scarcity of the appropriated objects. Rather, the purpose of an intellectual property right is to create a scarcity, thereby generating a monopoly rent for the holder of the right. In this case, the law does not protect property over a scarce good, since the scarcity is created by the law itself. In fact, such artificial scarcity is the source of the monopoly rents that confer value upon those rights. The big difference between intellectual property rights and titles of property over tangible goods is that the latter will be scarce even if there are no well-defined property rights, whereas in the case of patents and copyrights the scarcity only arises after the property right is defined. 2 Defenders of patents and copyrights often deny that these property rights constitute monopoly privileges. They argue instead that the term monopoly is inapplicable in the case of patents and copyrights. 3 While this may be a matter of semantics to some degree, in any event there is no theoretical incompatibility between the property and monopoly aspects of intellectual property rights. However, in practice, these aspects are closely related, since the monopolistic nature of patents and copyrights is precisely what confers economic value upon them. Obviously, like any other monopoly privilege, patents and copy- rights can be valuable for their owners, though this does not in itself justify their existence. Clearly, the owners benefit from patent and copyright protec- tion, but the really interesting question is whether society at large benefits as well. One important aspect of this broader issue can be dealt with in reply to the question posed for this controversy. 4 The Case of Copyrights It should be noted from the outset that the term copyright , as currently used, actually comprises a bundle of several different rights that have become conflated because of the use of a single concept to cover the entire bundle. The expression used to denote copyright in Spanish, French, Italian, and Portu- guese ( derecho de autor, droit d’auter , diritto d’autore, direito do autor ) literally trans- lates as “author’s rights.” The concept of author’s rights encompasses a broader range of rights in addition to the notion of copyright in the narrower sense (i.e., the right to control reproduction of the work). Such broader rights include the so-called moral rights of the author, which view literary and artistic works as extensions of the author’s personality. The moral rights of the author encom- pass the following protections: (1) the right to be identified as the creator of the work (so-called paternity rights of authorship and protections against plagiarism), 112 Journal of Markets & Morality 4, no. 1 (Spring 2001), 112-119 Copyright ©2001 Center for Economic Personalism “The greatest constraint on your future liberties may come not from government but from corporate legal departments laboring to protect by force what can no longer be protected by practical efficiency or general social consent.” 1 Jo hn Perry Barlow Introduction Patents and copyrights are special forms of immaterial property that grant to their owners the exclusive right to control the production and sale of a specified product—a literary or artistic work in the case of copyrights, an in- vention or productive process in the case of patents. Often these concepts are subsumed under a broader concept of intellectual property, but they are not completely analogous and cannot always be justified with the same arguments. The term intellectual property also covers some other very different concepts, such as trademarks. Unfortunately, in recent discussions of these topics the concept of intellectual property is often used generically, blurring some impor- tant practical distinctions. Patents and Copyrights As Property Rights Although the term intellectual property is commonly used in the legal field, in economics it is rather problematic, since it is difficult to justify this type of property right with the same arguments used to justify property in tangible goods. According to the economic theory of property (following David Hume), society benefits from the delimitation and protection of property rights be- cause goods are scarce. There is no point in defining property rights over goods when these exist in abundance. On the other hand, when goods are scarce and Controversy: Would the Absence of Copyright Laws Significantly Affect the Quality and Quantity of Literary Output? Julio H. Cole Professor of Economics Universidad Francisco Marroquín Guatemala 113 Markets & Morality