A friend of mine, with whom I agree on a great many intellectual matters, recently sent me the manuscript of a book he is writing. He is a strong advocate of individual rights and a principled opponent of government per se, since he argues that government force cannot help but violate individual rights. So I was surprised to find, right there on page one of his manuscript, the phrase "Copyright 2007. All rights reserved."
What is copyright? Usually it is considered a form of intellectual property. But that raises a further question. What is property? Are intellectual creations a form of property? If so, exactly how?
We are all familiar with physical property, from which the concept of intellectual property is derived by analogy. The term 'property' comes from the Latin term for "that which is one's own". I have not read any detailed anthropological, sociological, or philosophical accounts of ownership, but it appears to be almost a primal phenomenon of human life. Even the most ancient hunter-gatherers required certain accessories and tools in order to pursue their distinctive mode of living, such as clothing, spears, knives, axes, jars, and pots. Whether these objects were owned individually or by a group (e.g., a band or tribe) is not my primary concern here (although I happen to think that survival was at that time much more collective than it is now). The people involved made these things by modifying found objects such as rocks and clay, cutting down trees and shrubs, killing animals and reusing their bones, sinews, and skin, etc. As John Locke would say millennia later, they "mixed their labor" with the elements of reality and therefore came to have a measure of control over the form, location, use, integrity, and very existence of certain physical objects. The fact that some amount of work is involved in the making of such objects seems to give people the idea that they own these objects; after all, I own my life, my time, my energy, so the things on which I expend my time and energy for the sake of living seem to be naturally my own as well. The terms "mine" and "thine" are found in every language for a good reason.
Yet there are limits to ownership. Some of those limits are practical -- I cannot own Alpha Centauri or a cloud in the sky or a random molecule of water in the ocean or a piece of land so large (e.g., an entire continent) that I cannot maintain control over it. Some are moral -- I cannot own another person (although in historical time slavery has been eradicated only very recently) or own so much (e.g., the agricultural product of an entire continent) that there is not "as much and as good" remaining for other people, as Locke put it. Some are existential -- I cannot own the element of oxygen (wherever it might occur in the universe) or the color blue (whatever might trigger it) or the relationship of love (whoever might experience it) or the action of eating (whoever might engage in it) or the word "I" (whoever might utter or write it). Some are historically contextual -- 100,000 years ago it was non-sensical to own 1,000 acres of farmland because human beings had not yet discovered or invented agriculture.
So traditionally, ownership has pertained to physical objects of the sort that can be controlled by an individual or a group of individuals -- whether worn, carried, handled, shaped, ridden, corralled, inhabited, patrolled, built upon, occupied, farmed, harvested, consumed, collected, stored, transferred, conveyed, sold, moved, modified, or whatever. Naturally, over time technological and societal change has transformed the nature and scale of the things that can be controlled in these ways. But it seems to me that the primary meaning of ownership is fundamentally a matter of control over an object.
Ideas are not objects. No one can control how a concept, insight, discovery, invention, or creation spreads or is used. For this reason, an idea is not subject to exclusive possession, use, and disposal, as physical property is. Furthermore, once an idea is made public, the person or persons who generated the idea are not harmed if the idea spreads far and wide. An idea cannot be taken from its creator in the way that physical property can. If I compose a poem and recite it to you, and you commit it to memory, the poem is now in your brain but it is still in mine; so you have not taken it from me and I am still whole. If you then write it down so that you can remember it, I am not harmed in any way. If I post it on my website and while you read the text it is copied into your browser, you have not stolen the poem from me. If you then recite it to your spouse or email it to a friend, am I harmed? No, I am not.
The harm, real or perceived, arises when you try to palm the poem off as yours (I wrote it after all!), when you modify it, or when you sell a copy of it -- especially the latter. For the last 500 years, creators and their agents (mostly their agents) have sought to prevent these activities. The method by which they have done so is called copyright.
What is a right? The fundamental right is the right to life. You own your body, your time, your energy, your thoughts, your feelings, your choices, your actions. I cannot take those things from you without violating your person -- without doing violence to you through force or fraud. When we say that I honor your right to life, we mean that I recognize that your self-ownership is inviolable and that you have the freedom to think, choose, feel, and act as you see fit (as long as you do not violate the self-ownership of others).
As we saw above, people control certain objects in order to pursue a distinctively human manner of living. We call these controlled objects "property" -- that which an individual (or by extension a group) owns. Thus, as a corollary to the right to life, there exists a right to property. If I have come to own an object without doing violence to others, through free and voluntary production and trade, then I have a right to that object (until and unless I voluntarily transfer the object to someone else). If you modify or destroy or take the object from me without my consent, then you have done violence to me and you have violated my right to the object. Here again, my property right in the object is a matter of recognizing my legitimate control over the object.
But we have seen that an idea cannot be controlled in the way that a physical object can be controlled, nor does it need to be because an idea of mine is not taken from me if I make it public or share it with others. I can still use the idea even if you use it.
Yet the assumption behind copyright is that I am harmed if you share my idea with others -- or at least if you do so through economic exchange.
Let's say you recite one of my poems or perform one of my songs in public and that you receive some compensation for doing so (perhaps your travel costs, perhaps a small honorarium, perhaps a percentage of the evening's till). Am I harmed that you did so? Not that I can see. In all likelihood I could not have been in that place at that time, so it's not as if you prevented me from earning that money. Indeed, in a free market other people might prefer your performance to mine! I might not be especially happy about that fact, since I tend to think that I bring a special insight to the performance of my works, but you have not violated my rights or my person through your performance.
Now let's say that you copy one of the books I have posted on the Internet (say, The Ism Book), bind it up, and begin to sell physical copies of it. Once again, am I harmed? Not that I can see. For whatever reason I lack the time, energy, focus, money, or connections to publish physical books from the texts I post online. So I have missed an opportunity that you have taken advantage of, or you have taken a risk that I thought not worth taking (because I'm risk-averse). Indeed, even if I were publishing physical books from my texts, you might publish books from the same texts that are more attractive, more professionally marketed, or of higher physical quality, and therefore you might outsell my home-made books. Have you violated my person or stolen my property? No, I am still whole and unharmed, and I still have use of the text I wrote. I can legitimately claim that you violated my rights only if I can prove that I have a natural monopoly over publication of physical books based on the text I wrote. Yet in a free market there are no purely natural monopolies. Instead, monopolies exist only in the context of government force that is used to prevent others from entering the market.
And in fact that is exactly how so-called copyright arose: as a government-enforced monopoly. The early printers and publishers in England lobbied the Crown for the exclusive privilege to sell books based on any given text. The government agreed to use force of arms to prevent other printers and publishers from selling such books, on the condition that the protected printers and publishers would act as the government's agents in a matter of great interest to the King: censorship of undesirable opinions.
So intellectual property is not property and copyright is not a right. I can have no natural, human, individual right to prevent you from reciting my poems, performing my songs, recording my music, or selling copies of my essays -- once I have made them public, that is. By the uncontrollable nature of an idea, the act of publishing it implies that I have relinquished control over it. Once it is public, I cannot prevent it from spreading except by preventing people everywhere from reading, listening, speaking, writing, and trading. To do so, I would need to violate the individual rights of everyone on the planet to liberty of thought and action. And that is a position which anyone who values human freedom must find untenable and indefensible.
Peter Saint-Andre > Writings > Essays