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Intellectual property isn’t property

Aaron has an interesting post on why intellectual property isn’t property. The argument is based on two premises, both of which are actually quite shaky.

The first is that intellectual property is a negative right: “it gives you no new freedoms, merely the ability to prevent others from something they would otherwise be allowed to do. This is a monopoly, something governments must protect us from.” Physical property on the other hand, gives you the freedom to use or sell something you own.

The problem with this is twofold. First of all, intellectual property is not merely negative. Owning the copyright to something gives you the right to use it yourself (by self publishing), or to sell it (something I do when I sell a piece of writing). That is just as positive as owning and selling a car, for example.

Secondly, Aaron refers to intellectual property as a “monopoly”, because of the fact that it prevents someone from doing something they would otherwise be allowed to do. First of all, the same can be said of physical property: my ownership of a car prevents someone else using that car without my permission, just as owning the rights to a book prevents someone else from using it without my permission. There is no difference. Yes, they could just buy their own car – but people can always make their own music (and own the copyright to it). Perhaps if people made more things themselves, we’d actually have better things.

Of course, “monopoly” refers to a market position, not to that of a single good. The only connection between a monopoly and ownership is the fact that in each case a single entity controls something. But we as a society agree that control of a single item is a good thing, and that control of a market is a bad thing. Because the two things concern control does not mean they must both be bad or good.

Finally, there’s the troublesome notion that somehow “copyright is not a natural right” by which I assume Aaron thinks that property ownership is a natural rights. Unfortunately, individual ownership of property is no more a natural right than anything else: it’s so deeply inscribed in law that we sometimes forget that law is all that it is. There have been societies that saw everything as belonging to gods, or to the commons, or that had no concept whatsoever that things could be owned. If you believe that property is a natural right, then these societies are someone “against the law of nature” which is frankly absurd.

Intellectual property is in trouble not because it’s a shady notion, but because companies keep attempting to abuse it, by extending copyright terms ad infinitum and attempting to remove the legitimate “fair use” rights of others. If governments were prepared to actually stand up to the corporations, the world would be a better place. Fat chance of that.

Comments on this entry are closed.

  • http://www.aaronsw.com/ Aaron Swartz

    “Owning the copyright to something gives you the right to use it yourself (by self publishing)”

    You can do this without a copyright.

    “or to sell it (something I do when I sell a piece of writing).”

    You cannot sell your copyright under current law. You can sell a physical object containing a writing, but you could do that without a copyright.

    “Aaron refers to intellectual property as a “monopoly”, because of the fact that it prevents someone from doing something they would otherwise be allowed to do.”

    No, it’s a monopoly because it controls a market. No one else can sell a book you hold the copyright to without your permission. That market is monopolized by you.

    “Unfortunately, individual ownership of property is no more a natural right than anything else: it’s so deeply inscribed in law that we sometimes forget that law is all that it is.”

    It’s common law, a tradition stretching back millennia and is ingrained in almost all the world’s religions.

    “If you believe that property is a natural right, then these societies are someone “against the law of nature” which is frankly absurd.”

    I didn’t say that not having property was unnatural, merely that it was natural to have property (i.e. it’s the default outcome).

  • Ian Betteridge

    If you don’t own the copyright to a piece of work, you have no right to use it at all, if you’re talking about publishing. You can of course read a book you’ve bought – but what you own is the physical object, not the intellectual property.

    I don’t know if it’s different in the US, but you can sell a copyright (see here for some details). What you can’t sell is your moral right to be identified as the author of a piece.

    As for monopolies, I’m still unconvinced. No one other than me can sell the sofa I’m sat on, but that doesn’t give me a monopoly on sofas. If I customised it so it was a unique sofa, would it make sense to say I had a monopoly on sofas? No – I have ownership of this particular sofa, just as a person who writes a song has ownership of that particular song. What’s the difference?

    The record companies (and to a lesser extent publishing houses) do act as a cartel, controlling the markets. But that’s a different matter.

    Arguing that it’s natural to have property is a bit of a dead end. Unless you can find some “property genes”, that is. And I don’t think anyone’s looked for them :-)

  • http://www.aaronsw.com/ Aaron Swartz

    “If you don’t own the copyright to a piece of work, you have no right to use it at all, if you’re talking about publishing.”

    You’re missing the point. I’m arguing that copyright provides no new rights. Without copyright, you’re certainly free to publish anything you’ve written. With copyright, you’re still free to publish anything you’ve written (unless you’ve signed a contract not to or it’s a work made for higher). Yes, copyright adds restrictions for everyone else, but it’s nonsensical to say that it frees you from restrictions it created

    “I don’t know if it’s different in the US, but you can sell a copyright (see here for some details).”

    That page seems to indicate that, like in the US, copyright cannot be sold but merely “transferred” using a legal agreement. In the US, however, you can terminate that transfer after 25 years (you certainly can’t do that with physical property). There are a number of other differences.

    “No one other than me can sell the sofa I’m sat on, but that doesn’t give me a monopoly on sofas. If I customised it so it was a unique sofa, would it make sense to say I had a monopoly on sofas?”

    No, because I could customize my sofa in the same way.

    “No – I have ownership of this particular sofa, just as a person who writes a song has ownership of that particular song. What’s the difference?”

    When you hold the copyright to a song, it’s illegal for me to sing or record a song in the same way.

  • Ian Betteridge

    “That page seems to indicate that, like in the US, copyright cannot be sold but merely “transferred” using a legal agreement”

    Hardly: The first line clearly states “Copyright is a form of intellectual property and, like physical property, can be bought and sold, inherited or otherwise transferred.” It is very clear from that that copyright can be sold. See also here, a guide to copyright for writers, that clearly states “rights in the work may be sold, with the owner retaining no interest in it (except, possibly, for payment by way of royalties or some reversionary rights in certain agreed circumstances)”.

    In fact, this is an issue that I deal with every day, when I commission writers to write for me – the contract that I use specifically buys the copyright on whatever they write from them. Of course, you can instead license something, in which case things are a little different.

    The only “revert to creator” aspect in UK copyright law (which is now modelled on international law) is reversionary interest. This used to mean that 25 years after the death of the creator, rights to the work would revert to his or her estate. However, this was changed in 1988 and is now a bit more complex – but it still has to be after the death of the author.

  • http://www.aaronsw.com/ Aaron Swartz

    ” the contract that I use specifically buys the copyright”

    This sounds like a contradiction. If you’re signing a contract, then you’re not buying something. You’re probably purchasing an exclusive license or copyright transfer.

  • http://www.ludicrous.org.uk Ian Betteridge

    Of course you can sign a contract to buy something. I doubt very much that when Microsoft bought Virtual PC from Connectix, they did so without signing a contract…

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