Does Creativity Alone Create a Special Entitlement?

A discussion we had last night on Adam V. The Man — Stefan Molyneux and I were guests — kept returning to an idea that we never really had time or space to take on directly, until it was briefly touched on at the end.

The more I think about this, much of whole question of intellectual property rights seems to turn on this idea that we own what we create. That sounds very plausible at first. When people celebrate this idea, they talk about the great sculptor who makes a majestic piece of art out of stone, the composer of a symphony, or the lowly woodworker who makes a bench in his garage. They are said to be owners of something new.

Let’s look at a more mundane example. I’m making brownies using a conventional recipe and throw in a dash of bourbon. They turn out to be great. I call them Bourbon Brownies. What do I own in this case? I own those brownies. Why? Because I made them out of ingredients that I own. Because I created them, am I entitled to speak of having created something new that I own? Perhaps in a metaphorical sense. But nothing grants me the special right to a unique ownership right to my creation that somehow allows me to extract money from anyone else in the world who adds bourbon to brownies (unless, of course, I appeal to a government bureaucracy to make it possible). I own what I own — the physical brownies I took out of the oven — and nothing more.

Let’s say the word gets out and lots of people start making this recipe. Am I violated in any sense at all? Not at all. That the word gets out takes nothing away from my right to continue to make my brownies. That’s because creativity alone generates no new and special form of property.

If I have a pile of wood, I can make a bench, burn it, pulverize it, or whatever, but there is nothing in my actions that generate a transformation of my existing rights. Only the physical object changes but no new rights are created.

What if I work for a restaurant and make the discovery that adding bourbon to brownies improves them? If I used the restaurant’s ingredients, the restaurant owns the resulting brownies. It’s the same with the carpenter. If he makes a bench as a part of a labor contract, the furniture making company owns the bench. If the carpenter takes it, he is stealing. This idea of “creativity” changes absolutely nothing about property and the rights to property.

To be sure, there is nothing wrong with a person who whistles a tune and then announces to himself: I own my new creation! That’s great. But the instant he whistles this tune on the bus and someone hears it, that new creation enters the commons. The supposed rights to the tune are reproduced, potentially unto infinity, without taking away anything at all from the initial creator of the tune.

People like to imagine that we would have something like intellectual property rights in a fully free society. Well, people are free to call things whatever they want. But there is no special category of property that is “intellectual.” Your property is what you own or acquire through trade. What you do with your property is your business. But merely announcing that what you do is “creative” grants you no special monopoly on anything.

For example: I can take off my bowtie and wear it as a scarf. Do I now own the idea of the bowtie scarf? I can claim that I do but that doesn’t somehow permit me to prevent others from tying ties up as scarves or to forcibly take a share of revenue from others who do this too.

Creativity is glorious. It is all around us. In some small measure, all of us are creating every second of our lives. You might find a new way to drive to work, a new way to pour your coffee, a special tactic for talking on your smartphone while surfing the web, a way to eat your hamburger that yields the right mix of tomatoes and onions in every bite, a new way to shave in the shower. There is, in principle, no difference between this kind of creativity and that of the sculptor or writer or composer of music. Creativity is the pith of life. But creativity alone grants no one the right to interfere with the freedom or property or others.

For more on this topic, see the new edition of Stephan Kinsella’s classic “Against Intellectual Property.” As always, it’s free to Club members.

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