The Elements of Politics

Henry Sidgwick

Chapter V


§5. So far we have been considering the Right of Property, according to the commonest conception of it, as implying the right to exclusive enjoyment of the entire aggregate of utilities derivable from some portion of matter. Before leaving the subject we may observe that rights coming under the general head of property may be created by division into fragments, if I may so say, of the permanent right of exclusive use of some material thing. Such division may arise, in the first place, by mere limitation in time of the right of exclusive use; which will, of course, involve a corresponding limitation of the right to alienate or bequeath, and a withdrawal of the right to destroy or to deteriorate, except so far as some degree of deterioration is involved in the normal use of the thing. In the case of moveables generally, this is the only division of utility which can, from the nature of the case, be conveniently introduced; but in the case of land, certain special uses and advantages may be, and frequently are, secured separately to individuals who do not own the remainder: such as the right of hunting or fishing on the land of another, the right of pasturing cattle, of digging turf, etc. In the historic development of private property in land, such particular rights of use may have come into being as relics of a general right to share the utilities of land not completely appropriated, secured by custom to the cultivators of the neighbourhood. But in the modern community that we are now contemplating as organised on the individualistic principle, such a separation of utilities would only arise by consent, except in the case of utilities which it is clearly to the advantage of the community to reserve to the public: such (e.g.) as rights-of-way.

Another important class of rights of property, in which the objects appropriated are not material things, are those rights to non-imitation, by which the results of intellectual labour are protected; whether these results are of the nature of technical invention, secured by patent, or literary products secured by copyright. As I have already said, though the legal interference with the actions of other men required to protect these rights is of a very peculiar kind, it seems a clear application of the individualistic principle; so far as it is indispensable for giving the needed encouragement to industry, and is limited to results at which the persons prohibited from imitation could not possibly have arrived by independent effort. But in the case, at least, of patents, it is very, difficult to prove this impossibility. ``It is almost always within the limits of human probability that in protecting a technical invention we may be preventing the use of a similar invention which might otherwise have been made by some one else; indeed such coincidence of inventions may even be said to be positively probable, wherever several ingenious minds are simultaneously pondering over the best method of meeting some definite technical need.'' Hence patents generally must, I think, be regarded as involving some chance of encroachment on the opportunities of others, which must be supposed to increase as time goes on; and this seems a valid argument, from an individualistic point of view, for limiting the duration of this kind of property. In the case, however, of literary products, this difficulty is to a great extent absent; it arises only, if I may so say, on the margin of the right, in considering the exact degree of resemblance which ought to be held to constitute an infringement of copyright. There can be no encroachment on the opportunities of others in a prohibition to reprint Hamlet; though it may be doubtful how far, if the copyright of Shakespeare's plays were in force, another treatment of the same plot ought to be interfered with. For this reason, any limitation of the duration of copyright to a period falling short of the author's life is not defensible on individualistic principles. Even the limitation actually established in our own and other systems of law, by which copyright ceases at a certain time after the author's death, requires a special utilitarian justification: since the mere fact that the utility produced by a certain kind of labour cannot be adequately protected without legally prohibiting imitation, is not in itself a reason why such utilities should be less completely or permanently at the disposal of the labourer.

For completeness it should be noticed that there are other kinds of rights besides those discussed, which are commonly regarded as rights of property-and for ordinary purposes, rightly so regarded, as being both valuable and transferable, and so substantially equivalent to a certain amount of material wealth. Of these the most important class are rights to receive money, which belong to the class of rights arising out of contract, to be discussed in the next chapter. It may be noted further that we may even properly count as a part of a man's wealth a habit or tendency of action on the part of others which is advantageous to him, even though it is not in any way enforced by law, provided it is transferable: as (e.g.) the so-called ``good-will'' of a business. The only political question of importance that arises with regard to this species of private wealth is how far Government can rightfully diminish or destroy it without compensation, by some action otherwise legitimate.

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