Subtitle: Do Intellectual Property Rights Exist? Why ideas (or music or art or computer programs) cannot be owned like houses or cars can be owned …
It is not private knowledge that I have written a bit on copyright in more places than one (search under the category “Ethics”). Anyway, I want to revisit my argument that people have an inherent “right” to copy.
I actually am generally hesitant to say we have a “right” to do something. It might be better to state in the negative than in the positive. Here is what I mean.
It is not helpful to say that we have a right to live freely, as if “Nature” or the “Universe” or “God” owes it to us to have life and liberty. (From a Christian perspective, one receives everything in gratitude from a personal (and Triune) God who has revealed himself to humanity, created in his own image and thus capable of receiving and understanding his self-revelation. One is not owed anything.) Rather, it is better to no one has a right to oppress anyone else for personal gains or for what one perceives to be the “Common (or Greater) Good.”
So I may have spoken in the past about how my understanding of copyright presupposes that everyone has the right to copy. This may be more problematic than I have intended. Instead, if I were more careful and consistent, my argument should be based on the assumption that NO ONE has a right to ideas or works of art or music, and other things that are intangible.
Again, my views on copyright and intellectual property in general is that
intellectual property rights do not exist or
no one has a right to intellectual property or
one does not own ideas or works like one owns property.
What’s the payoff for thinking this way? Instead of insisting on the right of people to copy (which is contentious), I want to affirm property rights for tangible, non-multiplicable goods and argue that ideas and abstract works of art are NOT property in the former sense. In other words, a house or land can be property in ways that a computer program or the text of a book never could be.
(CONCESSION: Now in what follows, I am limiting myself to ethical and moral issues, and not to practical issues (however important). So I recognize that artists need to eat too and raise families, and currently our economy doles out wages largely as royalties tied to how a product is used, not how much labor is put into it. These are important issues, but they are not in the purview of this post.)
So in my ideal world, taking someone’s book without the owner’s permission would be theft and therefore immoral. Copying the words of the book without the owner’s permission would not in itself be immoral, unless the physical copy of the book was taken by force.
So basically, I believe in property rights. However, I don’t believe that intellectual property is truly property at all. Therefore, one cannot own intellectual property; one has no moral claim over said “intellectual property.” One cannot own intellectual “property” because they are not truly property. Intellectual property is therefore not property.
On what basis, then, do I claim that ideas are a different class of “property” than say a physical object? (That one spends time in laboring over developing a computer program or writing a book or painting a picture is not relevant to this discussion. Again, I believe that solicited works of art ought to be compensated for the labor, not for the use of the product.) I offer two differences in how we treat intellectual property rights that demonstrate convincingly (at least to me) that ideas are not equatable with physical objects (i.e. intellectual property rights are not equatable with property rights):
- Length of time for which the “right” is valid.
- Deprivation of a good (as opposed to the good being copied/multiplied).
Explanation of Point 1
In most (if not all) cultures that have some sort of copyright, copyright has an expiration date. Real property rights do not.* (see footnote below) Copyright is really an economic incentive (or at least it is thought to be a good incentive) that grants exclusive rights of a “creator” to his work. They do expire, however. If the person really owned something, then his right to it shouldn’t expire. This does not apply to real property. If I own a piece of land or a car, I own it forever (as long as I live). The fact that copyright and trademarks can expire/need to be renewed shows that copyright owners have no moral claim to their work.
Explanation of Point 2
When it comes to physical property, if I steal a statue from your house, I deprive you of a non-multiplicable good. When I copy something, nothing is deprived from you (except maybe your reputation of being an exclusive owner of something, though you are not entitled to your reputation).
In fact, a good is multiplied. Think about a recipe or an idea. I make a quality dessert. You follow my recipe. What happens. We end up with two cakes. If you steal my cake, I am deprived of cake. If you “steal” my recipe, I still have my cake. Therefore a recipe is not the same as a cake. If you steal a statue or painting I worked on, I lose my statue/painting. If you recreate/reproduce my work, I still have my original work.
Now, to be clear, no one has a right to force someone to share something. Therefore, if I paint something, I don’t have to let you see it. I don’t owe anyone access to it. Or if I modify some free software, I don’t have to share it with the community (under certain conditions that may or may not be set out in free software licenses). But once I publicly display my work of art or once I share my software, I don’t have a right to prevent people from building on my art or software, because I don’t have a right to “own” a particular set of colors and patterns or even a group of words. Or think music. Who can own a DMaj7 chord? Or an arpeggio? Or a particular chord progression? NO ONE, except God.
SIDE NOTE: The two points above would also apply to trademarks. If I want to start a company, I don’t have an inalienable moral right or claim to a particular name. (I still believe trademark and brand protection is important, but only to protect consumers from knock-off brands or imitations posing as the product of another company. But it’s about consumer protection, not about some “property right” of a particular brand or name. Why does Nike get to claim the name of a particular Greek goddess and not other people? If Nike should be trademarked, it is because we want people to have confidence that a shirt marketed as Nike is really from that company.)
I have sought to reframe the debate so as to put the burden of proof on those who seek to claim that copyright is a moral right. Those who insist on the morality of copyright usually consider ideas and other intangible, re-duplicable things an extension of property. That is, intellectual property rights is but one kind of property right.
I have thus argued that because abstract ideas can be copied without depriving the “owners” access to them (Point 2) and that copyright expires, ideas and “intellectual property” are therefore different than physical/non-duplicable property.
Therefore, the burden of proof lies on those who insist that intellectual property rights do exist in a moral or ethical sense.
(And I haven’t even talked about the myth of the solitary creative genius. In what sense do we create anything original? We might be creative in remixing other people’s ideas or music or … but in what sense can we claim our ideas to be “ours” in such a way that others cannot copy them without our consent?)
* Interestingly, one ought to consider the laws of Jubilee in the Hebrew Bible: in what sense do we have a right to property? Because all things belong to Yahweh, the Creator, everything is therefore loaned. We are not owners of anything, but stewards of everything. Things can truly be ours, but not in an exclusive sense, for all things truly belong to God. Our ownership is contingent.
For further reading from recognized and established theologians, see
- Vern Poythress: Copyright and Copying: Why the Laws Should Be Changed
- John Frame: The Other Shoe: Or,