Intellectual Property

by Peter Saint-Andre


I've been thinking quite a bit of late about the phenomenon of intellectual property. Personally I have my own copyright policy, which is something similar to free source (in the sense of free beer). However, my reading of Lawrence Lessig's book The Future of Ideas and some fascinating conversations about copyright with friends up in Rochester and with Elisa on the drive from there to NYC have me thinking about some of the broader issues involved.

Lessig talks about the value of the intellectual commons -- ideas that float free and unowned within the context of human thought and endeavor. There is a great deal of value in this commons, and it is the source of much human progress. It is the intellectual commons that enabled Newton to say that he stood on the shoulders of giants, because his work depended on the ideas of the scientists and mathematicians who came before him. Sometime in the late 18th to early 19th century, along came the notion of intellectual property in the form of patents and copyrights (which were originally couched as government-granted monopolies). This notion has been expanding ever since, and of late it has come to impinge quite seriously on the intellectual commons (as Lessig explores in his book). Yet certain things can be patented and copyrighted (e.g., inventions, musical works) and certain things cannot (e.g., ideas). Why? What makes a musical work different in kind from a scientific insight? Both of them involve a great deal of intellectual effort, for which the originator presumably deserves recompense.

Let's imagine a world in which intellectual property rights last forever (as normal property rights do as long as the piece of property exists, with appropriate transfers of ownership over time) and in which intellectual property rights can (or even must) be asserted over bare ideas. In such a world, there is no such thing as the intellectual commons. If you want to send a man to the moon, you need to pay royalties to the heirs of every scientist and mathematician whose work you use, from Pythagoras on down (not to mention every inventor since the proto-human who discovered how to harness fire). In that world, you can stand on the shoulders of giants, but you'd damn well better pay for the privilege unless you want a gaggle of lawyers at your throat.

In that world, I think it's safe to say that you would never be able to send a man to the moon, or even build a bicycle. So such a regime of intellectual property is too extreme in the sense that it is positively inimical to human well-being. The founders of patent and copyright law recognized this by limiting its scope to certain well-defined areas (e.g., not mere ideas) and by limiting the duration of coverage (which is continually being extended by boughten legislators at the behest of Disney and other large companies). The principle here is that everything goes into the intellectual commons eventually. The usual justification for such a policy is pragmatic: that's what is most conducive to human progress. Yet I can think of another justification: eventually, everything becomes part of existence. It is no longer a new invention, but an established fact. This is especially true of things that are "made public" (the original sense of "publish") -- it makes no sense to be able to charge royalties to use an image of, let's say, the Brooklyn Bridge nearly 120 years after it was erected. Such things become part of the commons by being made public.

Now let's imagine a world with no intellectual property rights, no government-enforced monopolies on reproduction. In this world, the moment you make something public (e.g., by publishing a poem in my webzine, releasing a CD, or selling an invention) it enters the intellectual commons. If someone can re-publish your poem or record a different arrangement of your songs or reverse-engineer your invention, there is no law or threat of government force stopping them. Would all creativity stop? Probably not. For one, this is the world that existed before the establishment of patents and copyrights in the late 1700s to early 1800s, and we know that numberless artists, thinkers, and inventors created things in that world. Second, many people do not create for the sake of money. Third, even those who do create for the sake of money have been known throughout history to find mechanisms to enable that, from patronage to the tip-jar.

It might be objected that a world without intellectual property rights penalizes precisely those who are most vulnerable -- the dedicated composer or poet or inventor who literally cannot do anything but pursue his or her craft to the exclusion of all else. To expect such a person to make a living in some other way (e.g., by performing or teaching or working at a day job) would deprive the world of immeasurable value. Imagine Beethoven as a Sunday composer slaving away during the weekdays in the insurance business or some equally mindless pursuit -- would he have created nearly as much or as good? Would not the intellectual commons be just as bereft of value in this world as it would be in the world of strict intellectual property rights?

Maybe, maybe not. But it's worth thinking about before we end up in a looking-glass world similar to world #1 outlined above. And that's precisely the direction we're heading in right now, as Lessig makes abundantly clear.

Peter Saint-Andre > Journal