A Deontological Two-Pronged Moral Justification for Legal Protection of Intellectual Property

K.E. Himma


Whether or not intellectual property rights ought, as a matter of political morality, to be protected by the law, I argue, depends on what kinds of interests the various parties have in intellectual content. Although theorists disagree on the limits of morally legitimate lawmaking authority, this much seems obvious: the coercive power of the law should be employed only to protect interests that rise to a certain level of moral importance. We have such a significant interest in not being lied to, for example, that ordinary unilateral lies are morally wrong, but the wrongness of lying does not rise to the level of something the state should protect against by coercive criminal prohibition.

I begin this essay by distinguishing two ethical issues regarding IP not usually distinguished in the literature. The first is whether authors have a morally significant interest (i.e., one that receives some protection from morality) in controlling the disposition of the contents of their creations, which would include some (possibly limited) authority to exclude others from appropriating those contents subject to payment of an agreed-upon fee; this interest might, or might not, rise to the level of a moral right. The second is whether it is morally permissible, as a matter of political morality, for the state to use its coercive power to protect any such interests authors might have in the contents of their creations. Such protection might, or might not, constitute a legal right, as there are other legal mechanisms for protecting peoples’ interests.

These are logically distinct issues. The first concerns moral standards that apply to the acts of individuals, while the second concerns moral standards that apply to the acts of the state. Not every morally protected interest an individual has is legitimately protected by the state. For example, I have a morally protected interest in not being told lies, but it would not be legitimate for the state to create a criminal or civil cause of action that makes a person liable for every lie she tells. Conversely, not every morally legitimate law protects some interest antecedently protected by morality. Apart from the existence of a law requiring people to drive, say, on the left-hand side of the road, no one has a morally protected expectation that people drive on the left-hand side of the road. Such an interest arises only after the enactment of a law requiring as much – and it arises because that law has been enacted. What individuals morally ought to do and what the law morally ought to do are issues that fall into two different areas of normative ethical theorizing because the law regulates behavior by coercively restricting freedom and hence impinges our moral right to autonomy.

Of course, the two issues are sometimes connected. Surely, part of what justifies the state in coercively criminalizing murder is the moral quality of murder: it is one of the worst moral wrongs, if not the worst (I am not sure, for example, whether torture is worse), one can commit because it violates one of the most important moral rights – the moral right to life. It would be morally problematic to criminalize a behavior and punish it with incarceration or death unless it involves a pretty grievous moral transgression.

I argue that it is also reasonable to think that whether legal protection of intellectual property is justified as a matter of political morality turns, at least in part, on the moral importance of the interests of the various concerned persons in intellectual content. If content-creators have no morally significant interest in the content they create and other persons have an urgent need for unrestricted access to content, then it seems reasonable to think that it would be wrong for the state to enact restrictions on access to content of a sort that constitutes protection of intellectual property.

In this essay, I next address the substantive issue of whether the state may legitimately recognize and protect IP rights (which, again, need not mirror the content of existing IP law in the western world) because this is, as far as I can tell, the issue about which theorists and laypersons are most concerned. In doing so, I assess the weight of the interests that content-creators have in their creations against the interests of third parties, and attempt to assess the relative importance of each. In the process, I defend this methodology on both intuitive and theoretical grounds, giving famous examples of influential philosophical theories that more or less explicitly justify substantive moral claims on the strength of the interest-balancing methodology I articulate here. Additionally, I explicitly address both the issue of individual morality and the issue of political morality and take care to ensure that the reader is aware at all times which issue is being addressed.

On the basis of this methodology, I give a detailed assessment of all the relevant interests, specifying whether they fall under the category of needed for survival, needed for human flourishing, or merely wanted for amusement. I argue that the interests content-creators have in the content they create (or discover) (1) outweigh the interests of other persons in all cases not involving content necessary for human beings to survive, thrive or flourish in morally significant ways, and (2) are sufficiently important that they deserve some legal protection. I also argue that (3) ordinary considerations of justice support the idea that content-creators have a morally protected interest in the value they introduce into the world through their intellectual creations. While (1), (2), and (3) do not obviously imply the existence of moral rights to intellectual property, they surely present a prima-facie justification for using the coercive power of the law to protect the interests of content-creators in the contents of their creations. And one eminently sensible way of protecting their interests is for the law to allow them limited control over the disposition of their creations. How much control they should be allowed is a further issue I do not address here.