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LVRG ScrapbookTuesday, July 24, 2001:

Tucker vs. George on patents & copyrights

By Gavin R. Putland.1

... In Progress and Poverty (1879), Book 8, chapter 3, [Henry] George wrote:

... there are temporary monopolies granted by the patent and copyright laws. These it would be extremely unjust and unwise to tax, inasmuch as they are but recognitions of the right of labor to its intangible productions, and constitute a reward held out to invention and authorship.

A doubt emerged in chapter 6 of Social Problems (1883), where George briefly noted that the men who make fortunes out of patents were usually not the inventors. However, he was “not now discussing the expediency of patent laws,” but only surveying the link between monopoly and obscene wealth.

He maintained his defence of copyrights in a paragraph in chapter 19 of Protection or Free Trade (1886). The paragraph complained of the absence of international copyrights, noting that American publishers were protected against competition from foreign publishers but could sell the work of foreign authors without royalties (while American authors suffered similar treatment in foreign markets), and citing protectionist opposition to international copyrights as evidence that “protection” meant protection for employers, not workers.

Eventually, in the Standard of 23 June 1888, George admitted that he had been mistaken with regard to patents. The work of an author or artist, he said, is labour of production and confers ownership on the producer, whereas the work of an inventor is labour of discovery, not production; one cannot discover anything that has not, so to speak, already been put there to be discovered. So there should be no patents. Subsequent printings of Progress and Poverty carried a footnote to this effect, acknowledging the earlier “error”.

The anarchist Benjamin R. Tucker, who disapproved of both patents and copyrights, quickly pounced on George. In Liberty of 7 July 1888 (published a fortnight after George's recantation), Tucker wrote:

Observe how cunningly it is taken for granted here that the task of giving literary expression to an idea is labor of production rather than labor of discovery. But is it so? ... [Quoting George:] “The work of discovery may be done once for all ... but the work of production is required afresh in the case of each particular thing.” Can anything be plainer than that he who does the work of combining words for the expression of an idea saves just that amount of labor to all who thereafter choose to use the same words in the same order to express the same idea, and that this work, not being required afresh in each particular case, is not a work of production...? In quoting Mr. George above I did not have to expend any labor on “how to say” what he had already said... [T]he particular combination of words belongs to neither of us ... [b]ecause, to use his own phases, this combination of words “existed potentially before he came”; “it was there to be found”... The work of copying or printing books is analogous to the production of wheelbarrows, but the original work of the author, whether in thinking or composing, is analogous to the invention of the wheelbarrow; and the same argument that demolishes the right of the inventor demolishes the right of the author. The method of expressing an idea is itself an idea, and therefore not appropriable.

Which, I have to say, is one of the better demolition jobs I have seen — apart from one glaring omission: to reject both patents and copyrights is not the only way to correct George's inconsistency. The other is to admit that he was right after all in Progress and Poverty (“once he thought he was wrong — but he was mistaken”). Some Georgists lean one way, some the other way.

Other objections raised by various Georgists against patents can also be raised against copyrights. Just as inventors must give away most of the value of their patents to capitalists (manufacturers), so authors and musicians must give away most of the value of their copyrights to capitalists (publishers and recording studios). Just as a firm may buy a patent for the sole purpose of ensuring that the patented device is never manufactured (because it threatens some other interest of the firm), so an interested party may buy the copyright in a work of art for the sole purpose of censoring it. ...

There are further practical difficulties in distinguishing between copyrights and patents. An algorithm, for example, is generally held to be patentable, while the expression of that algorithm in a programming language is copyrightable; but an algorithm cannot be specified for patenting purposes except by expressing it in some kind of language. Similarly, a DNA sequence may be patentable as a method, but any form in which that sequence is specified is surely copyrightable. An electronic circuit is patentable, but the circuit schematic (or any other specification of the circuit) is copyrightable. A mathematical formula is (I believe) patentable, but the equation expressing that formula is copyrightable. For reasons like these, any distinction between patents and copyrights for tax purposes would lead to avoidance schemes designed to disguise one as the other.

For my part, I confess that I can see one clear moral distinction between patents and copyrights: inventions are impersonal, while literary and artistic works of any merit could not exist without their particular authors. If Edison had never been born, someone else would have invented the phonograph. If J.S. Bach had never been born, no one else would have composed the St Matthew Passion.2

However, if there had been no patents, it would have been necessary to find some other way to pay Mr Edison for his 99 percent perspiration or he would have kept his 1 percent inspiration to himself. Even if some of the perspiring was done by Edison's employees, it still had to be paid for out of the proceeds. This is the problem for any Georgist or anarchist who opposes patents: if you want inventions but don't want patents, how do you propose to ensure that potential inventors find it more rewarding to invent than to spend their time in other ways?3


1 From a post to the now-defunct “OnLineOpinions” email list, Jul.24, 2001 (message 529). Reposted with added links, endnotes and minor corrections, Jan.8, 2010.

2 In other words, independent reinvention of a patentable work is more likely than independent recomposition of a copyrightable work. In response, patents protect against independent reinvention. And that's the problem; see “The essential difference between patents and copyrights”.

3 I eventually answered my own question.

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