----- Forwarded Date: Sun, 7 Nov 1999 22:26:21 -0800 From: LIST HOST <hayek-lhost at HOME.COM> Organization: Hayek Center for Interdisciplinary Research Subject: Hayek on copyright & patent privilege monopolies
>> Hayek Quote Unquote << -- Monopoly Privilege / Copyright
"The problem of the prevention of monopoly and the prevention of competition is raised much more acutely in certain other fields to which the concept of property has been extended only in recent times. I am thinking here of the extension of the concept of property to such rights and privileges as patents for inventions, copyright, trade-marks, and the like. It seems to me beyond doubt that in these fields a slavish application of the concept of property as it has been developed for material things has done a great deal to foster the growth of monopoly and that here drastic reforms may be required if competition is to be made to work. In the field of industrial patents in particular we shall have seriously to examine whether the award of a monopoly privilege is really the most appropriate and effective form of reward for the kind of risk-bearing which investment in scientific research involves.
Patents, in particular, are specially interesting from our point of view because they provide so clear an illustration of how it is necessary in all such instances not to apply a ready-made formula but to go back to the rationale of the market system and to decide for each class what the precise rights are to be which the government ought to protect. This is a task at least as much for economists as for lawyers. Perhaps it is not a waste of your time if I illustrate what I have in mind by quoting a rather well-known decision in which an American judge argued that 'as to the suggestion that competitors were excluded from the use of the patent we answer that such exclusion may be said to have been the very essence of the right conferred by the patent' and adds 'as it is the privilege of any owner of property to use it or not to use it without any question of motive'. It is this last statement which seems to me to be significant for the way in which a mechanical extension of the property concept by lawyers has done so much to create undesirable and harmful privilege."
F. A. Hayek, "'Free' Enterprise and Competitive Order". In _Individualism and Economic Order_. Chicago: U. of Chicago Press. 1948. pp. 113-114. The substance of a paper which served to open a discussion on the subject indicated held at a conference at Mont-Pelerin, Switzerland, in April, 1947.
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