Like several other issues, there is a division in the libertarian party amongst intellectual property rights. Many modern libertarians are strong supporters of intellectual property rights, while others view intellectual property as a privileged monopoly power granted by the government. Given the variety of other issues which typically dominate libertarian platforms, this one is often overlooked, so the dominant viewpoint is difficult to ascertain.

Some libertarians view intellectual property as an extension of private property, as such bound by the same principles. This is based on the idea that intellectual property, like conventional property, is the creation of a particular owner, and to reproduce it one must put the original to use.

However it is argued, conventional property is much unlike intellectual property in that intellectual property can be consumed as intangible information and is often only reproducible at the expense of the media, very rarely at the creator's expense. In fact, the only estimated expense of reproducing a copyrighted/patented/trademarked work is the potential loss of revenue to the creator that the respective government-granted privileges would have procured.

Given the sharp division between the two stances and the low priority most libertarian organizations give intellectual property and copyright law, libertarians often have a variety of viewpoints regarding it. Some criticize intellectual property even being referred to as "property", being intangible it is difficult to argue that it is ever possesed or that anyone has a "right" to it that others do not. Thus its status in relationship to the natural law that guides most libertarian policy is often regarded as uncertain. However, libertarian stances on various issues revolving around intellectual property and copyright law are not so uncertain.

Most modern copyright and intellectual property law stems from a series of international conventions and treaties, the most prominent of which were the 1886 Berne Convention and the more recent 1996 World Intellectual Property Orginization treaties. These have been codified into American law as the Copyright Act of 1976 (last major general reform of copyright law, codifies "fair use"), with the Copyright Term Extension Act (extends copyright holdership terms), the Digital Millenium Copyright Act (legislation enacting the WIPO 1996 treaties), and the Family Entertainment and Copyright Act of 2005 (increases copyright penalties and permits methods for modification of film movies by distributors who intend to "sanitize" content to make them more family-friendly).

Most libertarians prefer law that is based on original American legislation and not as a requirement to international treaty, however this initiative as a general reform is low in priority. General libertarian observations and criticisms of modern copyright law is as follows:

1. Many of the laws pertaining to copyright seem to work on benefitting people who are not original creators, such as the Copyright Term Extension Act, which mostly affects corporations that have assumed intellectual property from authors/creators. This can make intellectual property extended nearly indefinitely, well beyond the death of the original author/creator. An example of this is the Happy Birthday Song whose last recognized author died in 1946, and which is currently owned by a subdivision of Time Warner until 2030 when the song will finally become public domain (unless of course the copyright is extended again).
2. Lobbyists on behalf of beneficiaries of intellectual property rights, such as the RIAA and MPAA, have an adverse effect on the criminal and civil penalties tied to copyright laws. This is evidenced in recent legislation such as the Artist's Rights and Theft Prevention Act of 2005 which offers a maximum penalty of 6 years in prison for reproducing a film for redistribution, and in high statuatory damages awardable in civil cases as high as $150,000 per infringement. These penalties are often conventionally applied to common reproduction of music, movies, or literary works via mediums such as the internet and are often considered by critics as knowingly extreme and maliciously abusive of legislative code in the face of more serious Federal criminal issues such as the spread of child pornography and human trafficking.
3. While registration of copyright material is not required to protect copyrighted works, it is necessary for most procedural causes to process actions against copyright infringers. This means that the government has oversight of nearly all copyright/patent/trademark issues, and that prima facie recognition of a particular intellectual property ownership is only granted to the first person to register the idea or work with the government. Some might argue that a system like this will lend itself to abuse, particularly within the patent office, which often grants patents based on abstract concepts allowing often unheard-of companies the ability to charge royalties for innovations they often did not popularize or even widely produce.
4. Many libertarians who want lighter or less restrictive copyright legislation want an expansion of terms of Fair Use, codified by the Copyright Act of 1976, which allows limited means of using copyrighted material without being considered violating the terms of copyright protection, as well as an expansion on provisions protecting derivative works.
5. Common law, which is important in the history of the modern judicial system, used to primarily govern the civil issues surrounding copyright/patents/trademarks. Some libertarians who prefer a minimalization of the legal code will argue that we should not codify these legislative positions at all, as where possible, we should defer to common law and intellectual property has had many historical rulings and practices establishing it firmly in common law precedent.

It is widely agreed even by detractors that copyrights/patents/trademarks are important in preventing fraudulent activities such as bootlegging. Because intellectual properties are easy to reproduce often without the original author's consent, it allows others the ability to present themselves falsely as the original author. Often in today's market, whether or not something comes from an original source does have a lot of affect on its value, either as a patent invention coming from its original creator, a trademark coming from its original source, or a copyrighted work being reproduced from its original author. As such, imposters and frauds are a rampant problem for the marketplace. This is especially true in the instance of trademarks where we often use to identify major product lines, without strict enforcement it could make purchasing specified products very confusing.

Those who are critical of intellectual property legislation might suggest that the laws are still necessary for this reason, however might in turn promote the idea that penalties and holding terms for copyrights/patents/trademarks need to be reduced as they are still monopoly powers granted by government and not legitimate ends in and of themselves. Of course, the degree to which a particular libertarian agrees with this reasoning varies greatly depending on the ideological camps they originate from.

The authority of Congress to issue legislation addressing the issue of copyrights is granted to them with the Copyright Clause, in Article I, Section 8, Clause 8 of the Constitution:

The Congress shall have Power [. . .] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

It is widely adopted in American law that this gives Congress the authority to override state laws regarding all intellectual properties (most notably copyrights, patents and trademarks). However, some may argue that there are clear limitations to this authority, expressed in the direct wording of this passage.

1. The stated purpose of this clause is to "promote the progress of science and useful arts", thus it could be argued that things not deemed science or "useful arts" might not be intended under the original coverage of this passage. This would be including, but not limited to, conventional entertainments like music or film. Given that this pertains to powers granted to Congress, the principle of strictly enumerated powers applies (the 9th and 10th Amendments) and that suggests that this passage should be as limited and specific as possible, and thus we should not assume it was ever intended to be broadly defined.
2. The passage suggests that intellectual property is reserved for "limited times" to "authors and inventors". This suggests the original intention of the clause was not to produce transferable entitlements which original authors could completely transfer to a third party or non-entity such as a corporation, and that these rights should expire at some point and thus should be non-renewable. Critics of this line of thought might suggest that if the entitlement is not transferable it is not in fact "owned", and thus defend transferable intellectual property rights on that basis.
3. Lastly, the phrasing suggests that "exclusive right" should be given to their "respective writings and discoveries", which could be argued to mean that broad patents on ideas and applications should not be issued as they may be inspecific to the creator's actual work. American Founding Father Thomas Jefferson, a prolific inventor, expressed concern in a letter to Isaac McPherson in 1813 that patents could be granted on mere "ideas" (particularly, elevators) and that this might hinder the development of technology in the marketplace (Jefferson argued that it is fine for a patent to be issued on a particular sort of elevator, but that this should not prohibit other inventors from creating better elevators even if based on derivative technology, the "idea" of elevators should never be patentable). It could thus be argued that we should be extremely conscious of all the technological concerns and effects of granted protections to intellectual properties to be certain we are not granting them on greater abstract ideas, and that if we were doing that, we would be going against the original intent of the clause.

A divisive issue amongst libertarians that is often seen as a low-priority issue, the future of intellectual property is important to the development of technology in our society as well as the progress of our common culture. Libertarian platforms and legislation should be willing to address the complex issues brought about by Constitutional, marketplace, and ethical concerns with regard to the protections government grants authors/creators for their respective works. Most certainly, regardless of the school of thought, this field of law requires extensive reform. Preferably such reform should be conscious of how it expands government institutions and require as little additional budgeting and regulation for enforcement as is feasible.

This topic addresses policy that can be implemented without major change to existing institutions of government. As such it is classified as SECTION 1: "CORE MEASURES".