 |
 |
 |
|
distinctions to keep in mind
The debate over the proper scope and duration of the copyright and patent monopolies might proceed slightly more smoothly if the debaters will keep in mind the following distinctions: (1) The distinction between the work-in-itself and the monopoly privilege (copyright, patent) in the work. (2) The distinction between the work-in-itself (which is incorporeal) and physical objects incorporating the work. (3) The distinction between means and ends. (4) Related to (3): The distinction between short-term ends and long-term ends. (5) The distinction between (a) something which is forbidden by law because it is wrong and (b) something which is wrong only because, and to the extent that, it is forbidden by law. (6) Related to (5): The distinction between society's fundamental order and its administrative order. The use of the word "property" is unnecessary in the debate over the proper scope and duration of copyrights and patents. But if the word be used, those who use it should keep in mind: (7) The distinction between "property" as (a) something over which one has "sole despotic dominion" (Blackstone) and (b) Something "[which] without a man's own consent it cannot be taken from him" (Locke). Type (a) is a right to exclude which is silent on the question of whether the owner has any practical use for the thing; the proverbial dog-in-the-manger can exclude the calf, but the straw is useless to him as food. Type (b) is a right not to be excluded, which is silent on the question of whether the posessor of the right has the right to exclude others. (8) Possibly related to (6) above: The distinction between (a)things the law designates as "property" (in whatever sense) because they are fundamentally "property" prior to any law, and (b) things that are "property" only because, and to the extent that, the law declares them to be such.
|
