Are Inventions Property?
BY M. T. N. BENARD,
Editor of the “Journal des Economistes,” July, 1868.
(Translated and Reprinted by his obliging consent.)
In the number of the Journal des Economistes for last December there appeared a very conscientious paper on “Property in Inventions,” by our learned colleague, M. le Hardy de Beaulieu. We would have preferred that some master of the science had published an answer to this article, which it seems to us is based on a wrong principle, and that he had given to the readers of this journal the opposite view of those ideas so ably set forth by the honourable Professor of Political Economy at the Belgian “Musée de l’Industrie.”
We believe that this question has acquired sufficient importance and reality to merit being fully argued and cleared up; and, no other having taken up the pen in answer, we shall endeavour to set forth the principle which alone appears to us true and admittable.
We throw out these ideas for discussion, hoping that the subject will be taken up by one of our masters in the science, and that this great debate will be carried out in a manner suitable to the imperishable doctrines of justice and equity, which form the basis of political economy.
I
“The man who first made a hut,” says M. le Hardy de Beaulieu, “a piece of furniture, a cloak, or some necessary of life, would no doubt have thereby excited the envy of his neighbours, and he would frequently have been deprived of these objects by violence or by strategy, before it would be generally allowed that they ought to belong to him who made them, and that it was at once the duty and the interest of the community to guarantee him their possession against every attack.”
We acknowledge that the man who first constructed a hut was perfectly right in making good his claim against those who would have deprived him of it, and that he was justified in vindicating his claim by force. He had employed his time and strength in building this hut; it was undoubtedly his, and his neighbours acted up to their natural right and in their own interests in helping him to oppose the intruder. But there ended both the right of the individual and that of the community.
If this first man, not content with claiming his hut, had pretended that the idea of building it belonged exclusively to him, and that consequently no other human being had a right to build a similar one, the neighbours would have revolted against so monstrous a pretension, and would never have allowed so mischievous an extension of the right which he had in the produce of his labour.
Nevertheless, this man had exercised imagination and combination; he had invented the shape, the size, and the arrangement of the whole structure; he was the first to conceive—probably after many efforts of mind and thought, after long study, after observations made on the nests of birds and the hut of the beaver—that pile of branches, of dead wood, of leaves and of stones, of which its shelter is formed. He was an inventor of the first class. How is it, then, that the sentiment of justice which prompted him to claim his property did not prompt him at the same time to claim exclusive possession in the idea, the result of a long train of reflection? How is it that the same sentiment of justice which induced his neighbours, the community, to lend him armed force to preserve for him the possession of his hut, did not go so far as to grant him a property in his idea? No one dreamed of asking him for the permission to imitate what he had made; no one thought he was committing a crime, or doing him a wrong, in making a copy of his hut.
Property can be a right only when its principles tend to the general good and are useful in advancing the interests of the human race. And if, in our day, imitation of an invention is not generally considered as guilty an act as robbery of tangible property, it is because every one understands the difference between an idea and a thing made or done.
The inventor of a particular weapon, or certain furnishings, or tools, had all possible rights in the constructing and possession of these weapons, furnishings, or tools; but these rights could not be extended to the hindering of his neighbours from making tools, furnishings, or weapons, in every way similar. If the community had admitted an exclusive right in these inventions, it would have died in its germ, civilization would have been a dead letter, and man would have been unable to fulfil his destiny.
Thus far, then, there was not, nor could be in principle, any question of exclusive right of invention. This right was only thought of when all notions of social right had been obscured by laws which, like that of Henry II., declared that the right of labour belonged to the Crown, and when there had grown up the idea of licensing labour and granting exclusive privileges for its exercise. The institution of the pretended property in inventions was a retaliation against the suppression of the abusive right of masterships and corporations.
II
Doubtless invention, as M. le Hardy de Beaulieu remarks, consists in the discovery of a new scientific principle; but we cannot admit, with the learned Professor, that the new application of a principle already known, that the discovery of a natural agent hitherto unknown, or of new properties or other modes of action of natural agents, or of materials previously discovered, are inventions.
It is probable that coal was known long before any one thought of putting it in a stove to be used as fuel. It is certain that stone was known long before any one thought of employing it in the construction of walls.
To pretend that the discovery of the combustible quality of coal, or of the use to which stone might be put, gave a right to the discoverer to exact from his neighbours the payment of a royalty before employing this fuel, or this material for construction, is also to grant that he who, centuries before, had thought of burning wood to warm himself, or of seeking the shelter of a cave, ought also to be recompensed for the trouble he had in discovering, appropriating, and working out either this source of heat or this means of shelter.
Invention, we acknowledge, consists in the discovery of a new scientific principle; it can often place, as M. le Hardy de Beaulieu says, new gratuitous forces at the disposal of the community; but does it follow that the inventor has an exclusive right in the property of this discovery? We think not. The inventor of the compass, whoever he was, has rendered an immense service to the community; but could his invention be claimed as private property? Does it not, on the contrary, enter with perfect justice into the public domain?
Napier, the discoverer of logarithms, has rendered the most signal service to calculators and navigators; but can his invention, the knowledge of which may, either orally or by the printing-press, be extended indefinitely—which any one may use privately, in the quiet of the study—be put upon the same footing as landed property, which a single man may cultivate—as house property, which may belong to one or several, and which cannot be seized upon without its being observed, and to the great scandal of all? Evidently not.
And if the law has never tried to appropriate inventions of this class, it is because there must be something tangible, limited, and final, giving the power to regulate its employment or possession.
It is not correct to say, besides, that the inventor does not deprive the community of any portion of the common property which it possessed before the invention. Before the invention the thing discovered existed in embryo—in nature. This germ was multiple; it existed as frequently as there were men; and the inventor pretends, by the property in it which he claims, to deny it to all others and to hinder its germination.
The right of the inventor is limited to that of working out his idea; it is identical with that of a man who has discovered and cleared a field; but it is not, like his, exclusive. He who invents and he who clears can possess their property as long as they like and as they like; but there is this difference between the field and the invention: the first can be cultivated only by one without doing an injury to the proprietor, while the invention may be used by several without hindering, diminishing, or suppressing the working of it by the inventor.
I have cleared a field, and cultivate it; if one of my neighbours desires also to cultivate the same field, he hinders me from exercising my right—he interferes with my working—he dispossesses me.
I have discovered the combustible nature of coal: in what way does my neighbour, who cooks his food on a coal fire, hinder me from exercising my right, or interfere with the working of my faculties? of what does he dispossess me?
III
We have not, as we think, to take into consideration more or less the difficulties of inventors; we have not to inquire if every invention requires a more than ordinary degree of intelligence, special knowledge, great perseverance, &c. There is a multitude of occupations in life which require all these qualities, but no one has ever pretended that on account of these qualities, probable sources of success for them, they had a right to any favours, immunities, or privileges.
The inventor of a useful discovery has quite as much, or more, chance of making a fortune as the manufacturer who confines himself to the beaten tracks, and only employs the known methods; this last has had quite as much risk of being ruined as any searcher after discovery. We believe that they are on an equality as to position; for if the inventor may be ruined in not finding what he seeks, the manufacturer may see all his looms or his machines rendered useless, all his outlets closed, by the introduction of a cheaper means of production. Why make a golden bridge for him who enters the arena with arms more subtle and more finely tempered than those of his adversary?
Notice that the manufacturer also renders a service to the community—no doubt in seeking his own profit; but is it not so with the inventor? Why then demand a reward for the one which is not asked for the other?
The manufacturer who, in using the old looms, manages his factory so as to reduce his prices by 10 or 20 per cent., and who in consequence can furnish stockings (supposing him to be a stocking manufacturer) to a number of those who were not rich enough to buy them at the old prices, undoubtedly does a service to the community equal to that which it would receive from the invention of a machine which would make the stockings 10 or 20 per cent. cheaper.
The farmer who by superior ploughing, more skilful manuring, or more careful weeding, increases the yield from two to three quarters per acre—does not he also render a signal service to the community?
The sailor, who finds the means of shortening voyages by utilising certain currents or winds, in modifying the spread of his sails, &c.—does not he increase the gratuitous natural forces placed at the disposal of the community?
Why, then, if there is question of rewarding this class of services, should they not ask for privileges, favours, and exclusive rights? Why not go so far as forbid any one to arrange his factory on the plan of the manufacturers of whom we have been speaking? Why not forbid any farmer to weed, plough, or manure, like his neighbour; or any sailor to follow the track of the first, without paying to those who gave the example a previous and perpetual royalty?
IV
“The property of an invention having required for its creation the same labour as that of the soil, and this work offering less chance of success and results of probable less duration, it is as legitimate at least as landed property,” says M. le Hardy de Beaulieu; “and there is no argument against it which may not be applied with equal force to the individual and permanent occupation of the soil.”
The soil, to render all the productions that the community has a right to expect from it, ought to become and remain a personal individual property. Invention, on the other hand, cannot give all the results that society can draw from it, unless it be public property.
Herein lies the immense and irreconcilable difference between property in land and that of invention. Besides, land cannot become unfertile, unproductive, or lose all its value as property, except by some convulsion of nature which would deeply unsettle it. An invention, on the contrary, may become quite valueless in ten years, one year, a fortnight even, after being discovered, and that by the superiority of a subsequent invention.
What becomes, then, of the property of this invention? What is its worth? Has the inventor a right to damages?
If you construct near my field a factory from which escape noxious vapours, hurtful to vegetation, and if I can show that you have deteriorated or destroyed my crops, you, according to the laws of every civilised nation, owe me damages; would you claim damages of the inventor, whose discovery had rendered that of one of his predecessors partially or completely unproductive? If property in invention is equal to property in the soil, damages are incontestably due. We do not think that a single advocate for this class of property has, however, dared to carry his logic thus far.
The proprietor of a field may leave it uncultivated, the proprietor of a house may leave it shut up as long as he likes; no law obliges to put in a tenant, or to open it for lodgers. The laws of all countries contain, with slight modifications, the following clause, quoted from Art. 32 of the Law of 1844:—“Will be deprived of all his rights... the patentee who shall not have commenced the working of his discovery or invention in France within two years, dating from the day of the signature of the Patent, or who shall have ceased working it during two consecutive years, unless that, in one or other case, he can satisfactorily explain the causes of his inaction.”
It would be very easy for us to cite other differences in the nature of these two classes of property; we shall only refer to one more, which points out how solid is the property in land, and how uncertain and ephemeral the so-called property of invention. Land, considered as property, increases in value from day to day; there is no invention whose value does not diminish daily.
M. le Hardy de Beaulieu further adds, that “the inventor, in taking exclusive possession of his idea, harms no one, since he leaves all which previously existed in the same condition in which he found it, without in any way lessening the social capital on which he drew.” We should require, however, to come to an understanding as to what may be called the social capital; for if the exclusive property of invention had existed from the germination of the idea which led to the construction of the first hut to the making of the earliest weapons, tools, and furniture, it is difficult to know where we should find it. By putting property in invention on the same footing as property in the soil, all that man uses or consumes would belong to the descendants of the first inventors, and every one would require to pay a sort of rent for its use. The inventor of the wheelbarrow would have to pay a royalty to the inventor of wheels, and the maker of the plainest pump would pay an annual rent to the inventor of the lever or piston; there would not, there could not, be any social capital.
But it is wrong to say that the exclusive possession of an idea hurts no one, because it leaves what previously existed in the same condition. I, or my neighbour, might put together ideas to form the basis of an invention; this faculty of combination belongs to each of us; with exclusive possession it belongs only to one. It cannot be said, then, that no one is hurt, and that everything remains in the same position.
After having said that the property of invention is in every respect similar to property in the soil, M. le Hardy de Beaulieu places, nevertheless, boundaries to the extent and duration of the first. He says: “It is not meant precisely that property in an invention ought to extend over the globe, nor that its duration should have no limit in time; all property, in fact, is bounded by the cost of preservation, maintenance, and working, which it requires, already, long before the limit of space or time when the produce of the property no longer covers the expense, the proprietor does not require to defend it against seizure, and from that time it becomes public property.”
It follows that property of invention is not identical with property in land or other material objects. A diamond which belongs to me in any corner of the globe, the cotton stuffs which I have sent to Bombay or Saïgor, are still my property until I have voluntarily ceded them. My descendants, or those of some rightful owner, will cultivate in four or five hundred years or more the field which I may now possess. There is no limit of time nor of space for real property; it remains for ever.
V
The whole history of humanity protests against this assertion of M. le Hardy de Beaulieu, that inventions “being realisable only on the condition of a just remuneration, sufficient for the exceptional work which they require, and of a compensation in proportion to the risks they cause, property in them, which alone can assure this remuneration and this compensation, is necessary.” Let us remark, first, that by a just and sufficient remuneration he probably means a special, exceptional, and exclusive one.
We will now ask it to be observed that man’s most indispensable and useful tools were invented, and were everywhere in daily use, many years or centuries before there was any question of property of invention. We shall only cite the hammer, the file, the saw, the screw, the pincers, the plough, spades, needles, &c.
Did any of the inventors of these tools take out a Patent? Did he who first put a shoe on a horse claim a property in the idea?
All the great inventions, with the exception of a few of the most modern, and for which it was not possible to take a Patent, date from the earliest times. Who, then, invented the art of smelting the ores of iron, copper, lead, and tin? of making malleable iron and steel? When did man first invent the manufacture of glass, of pottery, porcelain, paper, ink, boats, and carriages?
Railways existed in a rudimentary state in the coal mines of Northumberland and Durham long before Patents were dreamed of. Printing and gunpowder appeared in the world without the guarantee of Patents; so also with the tanning of hides, the spinning of thread, weaving, dyeing, printing, &c. The electric telegraph is the result of a series of studies, and of the social capital of knowledge which these studies, and others foreign to the object as it were, have formed. Patents or rewards which have since been granted only concern modifications, more or less ingenious, of the original principle.
For what are inventors now doing? Without seeking in any way to detract from the merit of their labours, we may boldly assert that they modify in a profitable and economical way the older processes; instead of welding iron, they roll it; instead of the cold, they use the hot blast, in smelting.
To the tanning of hides they add currying, shamming, graining, polishing, &c. Are these services which cannot be sufficiently rewarded in the free working of the idea? Are they services which exceed by a hundred cubits those rendered by great manufacturers, large capitalists, intrepid seamen, or profound thinkers? And if, carrying out the argument of M. le Hardy de Beaulieu, we should say, credit being necessary to the progress of the community, and being realisable only on condition of a just and ample remuneration for the exceptional labour which it requires, and of a recompense proportionate with the risks incurred, the community ought to grant to the bankers exceptional rewards, or assure to them a special and perpetual privilege,—should we not be going on the premisses of the learned Belgian Professor?
No doubt that branch of credit, the issue of notes, is at present allowed in many countries to the great privileged banks; but may not the same arguments apply to discount, the receiving of deposits, quite as well as to the issue of notes?
VI
To admit, with M. le Hardy de Beaulieu, “that the rights of inventors are useful even to non-inventors,” we must allow that the progress of invention would be stopped if the privileges guaranteed by Patents were withdrawn. Now, we have already said that all human history up to a very recent period demonstrates the weakness of the assertion. Man has invented from the time he began to think and compare, and he will continue to invent while he exists on this planet. Invention is nothing else than thought.
If, as M. le Hardy de Beaulieu says—but which we doubt—there be no fear that property in invention allows the inventor to exact for his services a higher price than they are worth, neither need it be feared that the absence of this right of property would hinder the inventor from obtaining by his discovery all the profit which he has a right to expect from it. This fear would only be justified in the event of his being deprived by law of the right of using his own discovery. Now, this right remains intact; only it is not exclusive. If the inventor saves labour or outlay, the inventor will profit by this saving, like his neighbours; he will profit by it before his neighbours; he will profit by it exclusively so long as he can keep his secret, and while his opponents are establishing rival works on the same principle.
M. le Hardy de Beaulieu tells us that the inventor can never take advantage of his property to hold an unjust and injurious monopoly.
We will quote one example of a thousand from M. Louis Reybaud’s excellent work on wool. Speaking of the wool-carding machines, the learned Academician thus writes: “There may be cited twenty names engaged in these discoveries, incomplete as a whole, almost all fortunate in some detail. What is incomplete is laid aside, what is fortunate is so much gain; the new comers discriminate and choose. After a period of twenty years there are only three processes in use—those of Leister, Hellsmann, and Hubner; of analogous merit, and each having its partisans. Will they strive one with another? No, they compromised. M. Holden gets the assignment, and also acquires, either by purchase or by judicial decisions, the rights of Donisthorpe, Noble, and Croft. Messrs. Schlumberger and Co., the assignees of Heilman, retain only the manufacture of certain machines. We may imagine the wealth of a business established on so many purchases and decisions. M. Holden has added inventions of his own, and he may be considered the master of wool-carding until his Patents expire. Nothing is more interesting than the answers he gave on this subject before the Commission on the Commercial Treaties. On his own avowal he is proprietor of 45 Patents, 28 taken by himself, and 17 purchased from others. In these 45 are good, middling, and bad. He works them all in obedience to the law and to guard against lapses. In the bad, as well as the good, there is an idea to defend and a chance of upsetting; he fears that in abandoning them they might be used against him; for one machine in constant use there are forty-four which make a pretence of working; he does not hide it—it is his interest to hinder, as much as to work.
What would it be if, as it is demanded, property in invention, put on the same footing with property in the land, were perpetual? By the present system it may be the interest of one man to fetter improvement, and, having acquired the mastery of it, to mortally wound it wherever it appears! Is this not already too much the case?
Must we, then, repeat what reason and experience teach us, that unjust exactions cannot be made under a system of open competition, but always spring up under the shelter of privilege?
VII
The eminent Professor of the “Musée de l’Industrie Belge” makes a just and well-founded criticism on the diverse laws of different countries relating to Patents. Usually law-makers do not appear so perplexed, nor contradict themselves so frankly; this is because, when we forget what is right, when we leave principles to make a legal caprice, we sail over unknown seas, where no lighthouse guides us, nor compass shows us the right direction.
He attributes to the defective state of these laws “the almost unanimous censure displayed either against the legislation or against property in inventions.”
Would it not be more reasonable to acknowledge that if the learned law-makers of the numerous countries in which the principle of property in inventions has been adopted have not been able to frame laws capable of protecting the rights of pretended proprietors conjointly with those of individuals and society at large, it is because the principle is radically wrong, and contrary to the general interests of mankind? The law-giver finds an obstacle at every side in legitimate scruples; he fears to give too much, and he fears to take too much.
At present the censure is almost unanimous, it is acknowledged. Let us suppose that property in invention were abolished, and what complaints would result from the abolition? Few or none. When the inventor knew that, placed on the same level as all other workers, he must only rely on his intelligence, his capital, his time, and his right arm he would leave off claiming a privilege and complaining of the insufficiency of his rewards. At present the inventor says to the State: “I have found out a great thing, but I require your protection; you must place at my disposal your agents and your law-courts; the first shall enter the homes of my fellow-citizens, shall search their drawers, examine their books and papers, in my interest. By the second, their cause being lost, shall be condemned to ruin and misery. I am about to bring ruin on such and such manufacturers, to condemn a crowd of work-people to idleness; but you must grant me a privilege which will place me beyond the reach of all opposition, and allow me to make a fortune, quietly and without much chance of a failure.”
What difference do the champions of Patents find between this language and that which was held by the Protectionists? They also required Custom-house officers, and law-courts always open, to punish the smuggler; they further required the ruin of those who traded with distant countries, and the continual inactivity of our mercantile marine and sea-board population.
VIII
The honourable Belgian economist next combats the opinion of those who, struck by the numerous and weighty inconveniences presented by the Patent-Laws, and their extreme diversitude in every country, have imagined a remedy in the expropriation of invention for the public good.
We shall be far from attaining our object if the reader has not already understood that, renouncing all idea of property as applied to manufacture, we shall not discuss this phase of the question. We will say, however, that we must protest with all our might against the following principle, expressed by M. le Hardy de Beaulieu: “Neither can we admit,” says he “the justice of expropriation for the public good so far as it concerns property in inventions any more than in real property. Here also,” he adds, “the right of one ought to prevail over the interest of the greater number.”
It is no doubt intentionally that the word interest in this phrase is put in opposition to the word “right.” But would it not be more correct to say, the right of the community ought to prevail over the interest of the individual.
Individual right in property is certainly worthy of respect, and cannot be called in question; but to our thinking, the right of the community precedes and is superior to it. A part cannot be greater than the whole; no one can place his right above that of mankind, and the individual cannot oppose his will, good or bad, on the whole community.
We belong to no learned corporation—a simple volunteer in the army of economist disputants—and have no other banner than that of the truth; but we cannot refrain from saying one word in defence of those whom the learned Belgian speaks of among many others in these terms: “The judgment of the Academy of Sciences on the steamboat invented by Fulton may help to form an estimate of the contradiction which experience sometimes inflicts on the best-intentioned verdict of a committee of savants.”
We assert as a fact that if the steamboat presented to the Academy of Sciences by Fulton were now submitted to the judgment of a committee of machine builders, they would declare unanimously that the boat could not navigate. We wish in no way to seek to depreciate the acknowledgments which mankind owes to Fulton; but his invention, as all are at starting, was only a sketch, which required half a century of labour to perfect and to make as practical as it now is.
Here there is room for an observation which must be noted.
The advocates for the principle of property in inventions fall into ecstacies before a transatlantic steamer, and exclaim, “Behold, what a crying injustice! what deplorable ingratitude! Society has denied the rights of the inventor to this wonder of the sea! He died in poverty, or nearly so.”
Others go further back, and attribute to Solomon de Caux, or to Papin, all the honour; they forget that between Papin, or Solomon de Caux and Fulton, a crowd of men of genius brought their contributions of knowledge, experiment, and work of every kind; and that between Fulton and the makers of our day there are so many inventors, so many explorers, fortunate or unfortunate, ridiculous or serious, whose attempts or applications have helped to perfect the steam-engine, that it may truly be said that every one has had a hand in it.
It is the same with the railway, the electric telegraph, and the different machines for spinning, carding, weaving, &c.
IX
To pretend, as does the defender of the principle of property in inventions, in the ninth paragraph of his work, that the sudden and inconsiderate introduction of a new invention may cause a sensible injury to existing manufacturers, and that it is consequently advisable to maintain the system of Patents, which during a certain time limits their use and hinders production, to prevent the lowering of prices immediately at least; so to pretend is to renew the plea of the protected manufacturers, who demanded that the greatest precautions should be taken to facilitate the transition from Protection to Free-trade. But we do not see clearly what benefit there can be to the community at large in delaying the advantages to be derived from an invention. The misunderstood interests of certain manufacturers may appear to require this delay, but common sense tells us that manufacturers and consumers have every interest in immediately adopting every invention which saves labour, capital, and time.
If we look back, we will see that a delay of this kind would have retarded for an indefinite period the discoveries of Columbus in order to avoid a sensible injury to the monopoly which Venice had acquired in Eastern commerce. We maintain, as indeed experience proves, that however innovating inventions may be, displacement of labour occurs gradually. We will only cite, in support of this assertion, the well-known instance of the substitution of printing for manuscript copying. It may be answered that the substitution of mechanical spinning and weaving for hand-work caused great suffering. We answer, that you should blame the system of Patents, which, raising inordinately the cost of the machines, must have restricted labour, although they lowered the price of the product. If there had been no royalty to pay to the inventor, the number of the machines would have rapidly increased, and a greater number of workmen would at once have found employment similar to that to which they had been accustomed.
How many enterprising and intelligent speculators would most eagerly have availed themselves of these new outlets for their activity, if the course had been cleared of all these obstructions which the law has arbitrarily established.
At the risk of being considered by the honourable Professor grossly ignorant of the laws of political economy, we do not believe that monopolies will always exist, as he ventures to affirm. We know that there always will be intellectual superiority, unrivalled artistic ability, or special natural advantages; but these do not constitute monopolies, in the proper acceptation of the term; and the object we shall not cease to strive for is that no others shall exist.
X
It is beyond our province to consider the inquiries of M. le Hardy de Beaulieu as to the best plan of securing to inventors exclusive right in their discoveries. To take up this question is to undertake the discovery of the philosopher’s stone, or the squaring of the circle; several generations have vainly grappled with it, and the different attempts made without satisfactory results in almost every country prove this conclusively.
But the honourable Professor seems to calculate on the improvement of public morals, in order to reach the point where every attempt against the property of the inventor shall be considered as guilty as robbery, or as any injury done to property existing in material shape.
Under the uncompromising Protective system also it was attempted to improve the morals of the public, who would not see the equal guilt of the smuggler and the robber, and always loudly protested when repression was enforced by bloodshed.
No reform of public morals will change the nature of these acts; they will always be received as the appeal of right against abuse; and we would deeply pity the country where it would be sufficient to say such is the law, and where no conscience might protest against it.
XI
“Discovery, the appropriation and creation of outlets, is too complicated a work,” says M. le Hardy de Beaulieu, “for the inventor singly, and especially without the aid of capital, to undertake with sufficient chance of success.”
Here again we believe the learned economist is in error; he seems to imagine one inventor arriving at perfection either at a jump, or after many attempts—one inventor giving us at once our ocean steamer, or a spinning-mill with a hundred thousand spindles! Inventions go more slowly; when they spring from the brain of the thinker, they are only sketches, and no man in his senses will risk a large capital before making many trials, and that only on a small scale. We do not believe there has been a single invention which, after numerous trials, has not been modified, improved, and perfected.
And how many have at last been thrown into oblivion, from which they will never be recalled?
Also, when we see the defenders of property in invention draw a sad picture of the piercing miseries which inventors of these last have had to endure, we are always tempted to ask them to show us the pitiful account of ruin caused among those who placed faith in their promises and delusions. Every medal has its reverse, and if more than one real inventor has been misunderstood, many of the too-confident have been victims of the mad and inapplicable ideas of inventors who imagined themselves men of genius.
Is the law, which seems to promise an Eldorado to all inventors, to blame for these losses, for these undeserved sufferings?
Bernard de Palissy’s saying, “Poverty hinders the success of the clever man,” is often quoted. But this saying will always be true, whatever the law may be. Can we admit that if perpetual property of invention had existed in his time, Bernard would more easily have found the money which he required?
The success of an invention is secured by the services it can render being easily understood, immediate, and speedily realisable. The capitalist, in dealing with hazardous undertakings—and inventors’ undertakings “are always hazardous”—does not calculate on perpetuity. He works for immediate and large profits; he is in a hurry to realise, because he knows that some other invention may dispossess him of all his advantages. Little does he care, therefore, about the perpetuity.
XII
In his twelfth and last paragraph the learned Professor answers several minor objections to the system of property in inventions—objections which seem to us not to carry great weight.
However, in answer to the objection taken from the case of two applications for similar Patents, made at intervals of a few minutes only, the eminent economist says that this case occurs only at rare intervals, and making light of the rights of the slower, affirms that it is not worth considering. Does not this denial of a right on account of its infrequency, however, seem to show how arbitrary and artificial is the constituting of property in invention?
We are among those who believe in the harmony of all economic relations, of all legitimate interests; and when we see the right of one sacrificed to false exigencies, we mistrust the exigencies. We believe them unjust and contrary to the principles of equity, which forms the basis of all economic science. We should wish to have seen M. le Hardy de Beaulieu more logical in his deductions, claiming, as he has done, for real property [la propriété foncière] that the right of one ought to prevail over the interest of the greater number, and give a chance of obtaining an indemnity, if he could not be assured of a part of the property [Donner ouverture a l’obtention d’une indemnité si l’on ne pouvait lui assurer une part de propriété].
But we repeat, these questions of the arrangement [organization] of property, which we do not acknowledge, are beyond our province, and if we accidentally touch upon them, it is only to show how little the foundations of this right are similar to those on which rests the principle of material property.
In recapitulation, we reject property in inventions and the advantages claimed for it, because it seems to us that all this scaffolding of legal prescription and Government protection only results in throwing out of their natural course a crowd of workmen who would become more useful to society and to themselves in ceasing to pursue chimeras.
We reject the proposed assimilation of this property to that of the soil, because the privilege sought to be created cannot fail to hinder and lessen the right of each member of the body politic. We reject this privilege because nothing justifies it; the services rendered to society by inventors being nowise different in their nature from those daily conferred by skilful manufacturers, intelligent agriculturists, savants, navigators, &c.
Finally, we reject it because history attests that great discoveries were made before there was any conception of such property, and that it could hardly be in operation at this day, except with regard to modifications, or, if you will, improvements [perfectionnements], which do not merit this abstraction from the common right.
Additional Chapters (From the May Number of the Journal des Economistes)
The question of granting or denying a property in inventions is of such importance that the discussion raised by the honourable Belgian Professor, M. le Hardy de Beaulieu, ought not to be allowed to drop, and that we should try to renew it.
We believe it to be of importance for the future of manufactures and of progress, and most especially to the security of real property, that whatever is doubtful and disputed in this question be deeply studied, and that all should be agreed as to what property is, and if this title ought to be applied to all or any of the inventions which daily start up.
M. le Hardy de Beaulieu pretends that one of the most frequent errors of those whose enlightenment ought most to guard them against it is to believe that property being inherent in matter, is, like it, imperishable, and that property in land especially is as durable as the land itself. He adds that we should beware of it, because this error lays open landed property without defence to the attacks of communists and socialists, who, sliding down the incline of irresistible logic, are fatally led to declare all property illegitimate, to whatever purpose it is applied.
Here, it seems to us, is a misunderstanding which may be easily explained.
We do not believe that property is inherent in matter, any more than we believe that value is confined to any given substance. We believe that property is the result, the consequence, of human labour which has been incorporated in matter. As long as value conferred on land by labour endures, so long the property has a raison d’être, and cannot be contested. It is labour which has allowed the utilisation of the productive faculty of the soil, and productive faculty remains, like the property, as long as labour is bestowed in preserving, improving, and increasing it.
M. le Hardy de Beaulieu adds that he could cite numerous examples of lands abandoned or sold at a nominal price by their owners, either because they had exhausted and rendered them unproductive by an unintelligent culture, or because they had not been able to withstand the competition of more fertile soils, recently brought into cultivation or brought nearer the common centre of consumption by a considerable reduction in the expense of transport.
We do not contest this fact, of which the exactness may be verified any day in the increase or diminution of the value of property induced by the various changes brought about either in the grouping of the population, in the modes of culture, or in the means of transport. There are, however, few lands completely abandoned; to find examples, we should probably have to go back to those fatal times when by force of conquest proprietors were removed or all their means of culture and production were suddenly seized.
But we do not see how this can help the argument of M. le Hardy de Beaulieu. It has small relation, it seems to us, to the question of property in inventions, that—perpetual by law, as long as labour continues and renews it—landed property should sometimes come to an end by occurrences or violence such as we have been speaking of.
However, to state all our thoughts on the subject of landed property, we must confess (and here may be seen in all its clearness the radical difference between placing under culture, or cropping land, and working an idea), the vindication of property is found in the fact that land can only be cultivated by one at a time, must be subject to one will, and under one direction. It would be to my injury and the injury of the entire community that Peter should be allowed to plant potatoes in the field where Paul has already sowed wheat, or that James should open a quarry where John has built a house, and so on.
As we have already said, the power of the lever, the laws of gravity, those of the expansion of steam, the attraction of the magnet, the caloric of coal, the facility of traction imparted by the wheel, the optical properties of glass, &c., may be utilised to the great profit of all, in a thousand different ways, by a thousand individuals at once, without the efforts of any one being diminished, hindered, obstructed, or lessened, as to their useful result, except by the beneficent laws of competition.
“The first cause of property,” says M. Matthieu Walkoff,4 “is the impossibility of matter being moved in more than one direction at one time, or, to state it otherwise, of its being subject at one time to more than one will.” “If matter,” says this eminent economist, “were gifted with ubiquity, like ideas, knowledge, or truth, which several may use simultaneously, and each in his own way, property would never have been constituted; and it is even difficult to imagine how any idea on this phenomenon could have arisen in men’s minds.” “In fact,” he adds, “to preserve property in an idea would have required that it should never have been expressed nor practised, to hinder it, being divulged, which would have been equivalent to its non-existence.”
We do not go so far as M. Walkoff; we do not affirm that the impossibility of matter being subject at one time to more than one will is the first cause of property; but we say it is the distinctive character of property, and, like him, we cannot see a subject, for property is a shape, plan, or system, which, to see once, as in a spade, the wheel, the corkscrew, is to possess an indelible idea.
Besides, the author whom we have quoted expresses so clearly our opinion on this subject, that we must further borrow from him the following quotation, which will not be uncalled for at a time when property itself is threatened. It is of importance that the lawful bounds should be carefully marked:—
“Economists have too much neglected the first cause of the perpetual subjection of matter to exclusive property. They made property to be derived only from a man’s original possession; from himself and his acts; that which leads to possession of the result of his activity. But this reasoning only establishes the indisputable right of the appropriation of that which he appropriates or produces; it does not explain why exclusive property in material things is permanent, and does not show how the very nature of things renders this possession inevitable. It is to the incomplete understanding of the causes of property that is probably attributable the contradictions of those economists who, while professing the doctrine of free labour, are still in favour of the establishment of artificial barriers against the free use by every one of ideas, skill, progress, and other products of the mind, conceived and suggested, or realised, by any one.”
Let us remark here that in fact the manufacturing community, more liberal in practice than the economists in theory, are eager freely to submit to inspection at exhibitions the processes in use at their different factories.
“To require that an idea be subject to only one will,” continues M. Walkoff, “is to require no less an impossibility than to pretend that a material point can obey more than one will—that is to say, that it can be moved in more than one direction at once. It is true that it is not proposed to hinder ideas from being developed; it is desired simply to convert their reproduction or their material realisation into an indefinitely prolonged monopoly. But, in order completely to succeed in anything, it is necessary that the object aimed at be in conformity with the nature of things. Now, is it not placing oneself in opposition to everything which is most natural, this denying to every one the use of an idea? And even where this interdict is most successful, we soon find, in a manner most unassailable by the law, works copied from those to which the law has guaranteed a monopoly. The effect of the interdict is here, as in all regulations contrary to the nature of things, essentially demoralising; it begets fraud, entices to it, even forces to it, in making it useful and often even indispensable. Forbid men, as was once supposed by the witty author of the ‘Sophismes Economiques,’ the use of the right hand, after a few hours, there would not remain, in the eye of the law, a single honest man. It may be boldly affirmed that such a law would be immoral, and all those which recklessly contradict the natural order of things are incontestably such.”
In fact, we repeat, the field which I turned into a garden may not be used by my neighbour as a pasture-land for his cattle; where I have planted a vine another may not plant colza or beet-root; but the steam-engine which I have invented, or the electric power which I have discovered, may be applied to the grinding of corn, or the spinning of cotton, or to the extraction of iron, or to the draining of a marsh, or to traction by land or sea, without the productive force being neutralised, wasted, or lost, like the application of the productive force of the soil to different purposes.
Not only do the various applications of the idea not hinder the inventor in the employment which he may make of it, but if the application made by others is exactly the same as his, he is only subjected to the universal law of competition—a law of progress, if ever there was one.
II
The Hon. M. le Hardy de Beaulieu asks, “Why the effort which consists in rendering productive some natural agent in which this quality was not formerly recognised, should not entitle to a recompense of property in the value given to the natural agent in rendering it productive, in the same way that labour bestowed on barren land to render it productive, to the profit of all, makes him proprietor of that portion of land who performed this labour?”
Here is our answer: He who renders productive some natural agent has an incontestable property in that agent which he has rendered productive, but not in all similar or identical agents in nature; he who converts a certain quantity of water into steam, to obtain a motive force, is incontestably proprietor of the water he employs and of the steam, as well as of the force which he obtains, but the remainder of the water, and of the steam which may be produced from it, and the force which may be derived from it, remain the common property of mankind; that is to say, each should have it in his power to employ an unlimited quantity of water to obtain the same results. The man who first broke up and sowed a field never could have claimed as property all the ground in the world; he only retained for himself, and that reasonably and justly, the portion which he had reclaimed and rendered fertile by his labour.
We may add that he who renders productive some natural agent avails himself in this work of all the acquired knowledge and all the work previously done, and he would unduly monopolise it if the community recognised his exclusive right to it.
It is said that Pascal invented the wheelbarrow; did he not borrow from the social capital both the wheel and the axle, and the two arms, not to speak of the species of box which forms with the other parts the whole wheelbarrow?
Our learned opponent maintains “the perfect identity between the labour of discovery, and of the putting the soil in culture, and of this same labour applied to other natural agents which did not exist in indefinite quantity; and he makes the deduction, having the same result, that inventors placing at the disposal of mankind new quantities of gratuitous utility, not hitherto available, deserve the same reward—property in the natural agent, or portion of this agent, whose gratuitous services have been acquired by mankind.”
We must allow that we do not know of any natural agent of which the quantity is not indefinite, excepting only the earth; but steam, wind, light, electricity, magnetism, the force of attraction, that of weight, the affinity of particles, their divisibility, their different properties, may be employed in whatsoever quantities, and still there would be no perceptible diminution or restraint in the use of them to any one. The only possible restraint is that which comes from the unreflecting action of the law, from artificial hindrances and obstacles which may be made law.
We believe, with Bastiat, that the greatest service that could be conferred on mankind would be to remove the obstacles which stand between his efforts and the supply of his wants.
How does M. le Hardy de Beaulieu not see that no one has the right to make burdensome that which is naturally gratuitous, and that it is just to exact that no one should appropriate any part of what constitutes common property?
That learned Professor of the Brussels Museum tells us the inventor has a right to say to the manufacturer, “Find out my process for yourself if you can, search for it as I have done; but if you wish to spare yourself this labour, and avoid the risk of spending it in vain, consent to yield me a part of the expenses which I save you in simplifying your appliances.” And he asks us if we find this demand unjust or unreasonable.
Not only do we find this demand just and reasonable, but we maintain that it is the only one we can recognise. But M. le Hardy de Beaulieu forgets that, according to the Patent-Laws, things are not thus arranged. The inventor, with the law in his hand, and the law courts to support him, says to the manufacturer, “It is forbidden to you to search and to find; or if you search and find, you are forbidden to use the power or the agent when you have found it: the process which I have invented is my property, and no one has the right to use it, even if his researches, his labour, enable him to discover it; even if he had commenced the search before me, all his labour is lost. I alone am proprietor of this agent, power, or process.” If this system be right, he who first rendered productive the most indispensable natural agent could have confiscated the whole world to his profit.
III
M. le Hardy de Beaulieu acknowledges that the savage who first thought of substituting a hut, as a habitation, for the cave, has not the right to forbid the construction of others like it.
This concession is as important as the preceding, and we shall probably end in agreeing. We must now inquire where may be found the exact limit between inventions of which imitation is allowed, and those in which it is forbidden.
The man who first made a canoe from the trunk of a tree, either naturally hollow or artificially by fire, or otherwise,—may he forbid his neighbours to make one like it?
If he may, where, then, is the difference between the hut and the boat? If not, what is the reason for this prevention?
From the boat we might gradually go on, up to the latest Patent, by invisible transitions; and we have still to find the exact point at which M. le Hardy de Beaulieu might say, There is the limit!
We do not know whether, in the absence of all positive right which would guarantee a recompense to the inventor of the hut, a natural sentiment of justice would prompt the savages living in that country to make him a present of some useful object as a reward for this service, as M. le Hardy de Beaulieu suggests. We doubt it much; gratitude is an analytic virtue. The savages would probably have a certain respect for this man, whom they would look upon as gifted with superior qualities and faculties, but the presents would only arrive when, the contemporary generations being extinct, cheats and hypocrites would found on the inventions of this man some system of religion.
Yes, we acknowledge the truth and justice of the principle in virtue of which it is said, “Reward for merit.” But it must not be abused. Let a cultivator make a thousand trials, a thousand experiments, to give to the potatoes all the elementary qualities, all the nutritive virtue of wheat, and arrive at the object of his researches—to what recompense will he be entitled? According to the system of M. le Hardy de Beaulieu, no reward could equal the service which this individual would have rendered to mankind.
According to the system of non-property in inventions, this man would only have made his trials and his experiments—he would only have risked his advances of money, of time, and of labour—with the view of being able to sell his potatoes at a higher price than before, and, in fact, they would command a higher price, by means of which he would find himself sufficiently rewarded. This man asks nothing of society; he requires neither Patent, nor guarantee, nor monopoly, nor privilege; because the law has wisely placed beyond the reach of Patents all improvements in agriculture.5 Does this imply that agriculture no longer progresses, that the breeder of cattle does not improve, that they remain completely in statu quo? It is not from M. le Hardy de Beaulieu that we learn that the want of Patents does not hinder for an hour the progressive advance of agriculture; quite the contrary.
Establish the same system for all that concerns manufactures, and inventions will follow one another as rapidly as they now do. They will be more serious, for those who are engaged in them will no longer be excited by the allurements which the Patent-Laws dangle before their eyes, and will no longer lose their time in running after useless things and mere chimeras.
We do not wish to prolong too far this answer, but we cannot pass in silence the arguments which M. le Hardy de Beaulieu thinks he has found in the facts relating to the inventor of the mariner’s compass, and to the discoveries of Lieutenant Maury. We will simply remind him of the following passage from Bastiat: “He who can gain assistance from a natural and gratuitous force confers his services more easily; but for all that, he does not voluntarily renounce any portion of his usual remuneration. In order to move him, there is required external coercion—severe without being unjust. This coercion is put in force by competition. So long as it has not interfered—so long as he who has utilised a natural agent is master of his secret—his natural agent is gratuitous, no doubt; but it is not yet common; the victory is gained, but it is for the profit of a single man, or a single class. It is not yet a benefit to all mankind. Nothing is yet changed for the multitude, unless it be that a kind of service, though partly rid of the burden of labour, exacts nevertheless full pay [la rétribution intégrale]. There is, on one hand, a man who exacts of all his equals the same labour as formerly, although he offers in exchange only his reduced labour; there is, on the other hand, all mankind, which is still obliged to make the same sacrifice of time and labour to obtain a product which henceforth nature partly realises. If this state of things should continue with every invention, a principle of indefinite inequality would be introduced into the world. Not only we should not be able to say, value is in proportion to labour; but we should no more be able to say, value has a tendency to be in proportion to labour. All that we have said of gratuitous use, of progressive community, would be chimerical. It would not be true that labour [les services] is given in exchange for labour [des services] in such a manner that the gifts of God pass from hand to hand, par-dessus le marché, on the man intended [destinataire], who is the consumer. Each one would always exact payment for not only his labour, but also for that portion of the natural forces which he had once succeeded in applying. In a word, humanity would be constituted on the principle of a universal monopoly, in place of the principle of progressive community.”—Harmonies Economiques, Vol. vi., p. 354.
We think, with Bastiat, that the use of natural agents ought to be gratuitous, and that no one has the right to artificially monopolise in such a way as to exact royalties [prélever des redevances], which are not due, and which often are obstacles almost as insurmountable as those which invention ought naturally to remove.
T. N. Benard.
Notes
4 Precis d’Economic Politique Rationale, page 44; Paris, 1868.
5 Unfortunately, this is not true of British law. The illustration founded on it is (like the rest of these papers) admirable.—R. A. M.