The issue of whether non-scarce things like thoughts or labor are ownable has arisen in recent debates–see, e.g., Thoughts on Intellectual Property, Scarcity, Labor-ownership, Metaphors, and Lockean Homesteading; Intellectual Property and Think Tank Corruption; and New Working Paper: Machan on IP.
Johan Ridenfeldt called to my attention recently a 1988 panel discussion on ethics with Rothbard, Hoppe, David Gordon, and Yeager, which has this exchange:
Question: I have a question for Professor Hoppe. Does the idea of personal sovereignty extend to knowledge? Am I sovereign over my thoughts, ideas, and theories? …
Hoppe: … in order to have a thought you must have property rights over your body. That doesn’t imply that you own your thoughts. The thoughts can be used by anybody who is capable of understanding them.
This is compatible with (and, of course, pre-dates) my own views on property and scarcity. As usualy, Hoppe got it right early on.(See also Hülsmann’s Knowledge, Judgment, and the Use of Property, at pp. 44, and my Knowledge, Calculation, Conflict, and Law, p. 58, discussing the acquisition and use of knowledge being a mere technical problem.)
My view, as I argue in Against Intellectual Property, is that only some kinds of “things” are ownable in the first place. That is, before you ask who is the owner of a thing, it first needs to be established that the thing is ownable–the type of thing that property rights apply to. This is one mistake, in my view, in Rothbard’s attempt to derive a version of “copyright” (but which really also seems to include patents, since he thought it would cover inventions too). Rothbard assumes (as I explain in detail in the above paper) that where someone contracts with a novelist to buy only a single copy of a book and not to copy it, a third party may also not copy the book because he only has the rights that the customer had. This implicitly assumes that knowledge is ownable.
I think Machan also makes the mistake of implicitly assuming that that any “thing” you can conceptualize or name “exists” and “thus” can be owned. Such as a novel, or poem, or invention. And if these things are ownable, naturally, the person with the best connection to or claim to this thing is its creator. As Machan notes,
the status of something as private property appears to hinge on its being in significant measure an intentional objectâ€”its status as a private owned entity has to do with in what mental relation is stands with an agent. But then it would seem that so called intellectual stuff is an even better candidate for qualifying as private property than is, say, a tree or mountain. Both of the latter only come to be related to human intentions, whereas a poem or novel cannot have their essential identity without having been intended (mentally created) by human beings.
(This is somewhat reminiscent of what Rand did when she actually elevated patents over mere property rights in tangible goods, when she wrote that “patents are the heart and core of property rights.â€ See. p. 18 of my Against Intellectual Property article linked above.)
The problem here is it just assumes any “thing” you can identify conceptually may be owned. One problem with this is that it seems to make reality depend on the way we name or conceptually identify things. If I call or understand your output as a “novel,” then the “novel” is the unit. But just because this suffices for conceptual understanding of the world does not mean there is some “ontological” class of entities called “novels” that may be owned. In fact our concepts are use to refer to many phenomenon in or aspects of reality–truth, love, the-fact-that-I-woke up this morning, the age of the earth, my favorite drink. Are these things ownable just because they are “things” that can be conceptually identified? I don’t think so.
When you ask what things are ownable, before asking who the owner is, you realize the criteria is bound up with the purpose of property rights, which is to assign owners to avoid conflict; that is, they pertain to the types of things over which there can be conflict–that is, to rivalrous (scarce) resources. Clearly not to facts or memories or recipes or patterns or information. So you never get to the question of who owns a poem. It is simply not part of the class of ownable things. Call it a thing if you like; say it “exists”; fine by me. But it’s not an ownable thing.
If you restrict the ownership inquiry to scarce resources, you see the question of “creation” never really comes up, strictly speaking: as I have noted before, the focus on “creation” as an independent source of ownership is confusing and flawed. Actually, it is first use that is the key (as elaborated in my article How We Come To Own Ourselves). This is sufficient to allocate title to any particular scarce resource in question (the body is a special case). Creation, it turns out, is neither necessary nor sufficient: for example, if I am the first to homestead an apple, I own it even though I didn’t create the apple (yeah, you can torture language to try to say you “created” it in a sense since your creative efforts or “labor” were needed to recognize the opportunity etc., but let’s face it: you didn’t create the apple). So creation is not necessary. And if you create a statue in someone else’s granite slab, you don’t own it–so creation is insufficient. By contrast, if you create a statue in your own granite, you own the resulting statue, but not because you created it–because you already owned the granite, but merely changed its form.
Randians justify rights based on man’s “need” to be “productive” etc. I find this a very flawed and non-rigorous approach. It is what leads them to focus on creation as the touchstone of ownership; and this is why they are so eager to grant rights in IP–because yes, these things are “created” moreso than unowned scarce resources in the wild that are found and homesteaded.