This month, legal columnist, Tobias Schonwetter, discusses the flawed philosophical foundation upon which intellectual property protection is based. |
A friend recently told me about his plan to eventually set up a blog in order to keep people updated about his progress in his mountain bike racing career. Within minutes of the discussion, he furrowed his brow and asked me: “But the content of my blog remains my property, right?” As usual, as opposed to answering him directly, I replied with a counter-question – “Why?” Of course there was a long moment of stunned silence. Subsequently, it was a matter of seconds, and Creative Commons had a new supporter. Yet, such discussions always leave me contemplative and (quite honestly) a bit irritated. Why is it that nowadays the question regarding property rights seems to be an almost inevitable knee-jerk reaction when a new intellectual work is created – even if no commercial revenue from such a work is in sight?
The answer to this question is arguably twofold: First of all, the issues of “intellectual work” and “property” have impressively been linked by the content industries; especially through the constant suggestion that the unauthorised use of someone else’s intellectual creation is just as much a theft as the actual seizure of tangible property. The annoying and somewhat aggressive anti-piracy briefing at the beginning of almost every DVD these days is but one example of this successful strategy. Secondly (and from a more fundamental angle), we have to acknowledge that we undoubtedly live in an era of ever increasing individualisation within our society. This phenomenon goes all the way back to the Enlightenment period during the 18th Century in Europe and America. Against this backdrop, most people currently strive to accumulate as much individual property as possible – to the apparent detriment and definitely without enough consideration of the Commons.
However, I think that it is very important to mention that the philosophy on which the idea of the Enlightenment is based does by no means provide a solid foundation for such individualistic ambitions in the field of intellectual property in general and copyright law in particular. This needs further explanation:
One of the most influential figures during the Enlightenment period was English philosopher John Locke, and his work is often cited as the theoretical underpinning for the justification of intellectual property protection as some kind of a natural law. In essence, Locke claimed that people have a natural right of property in their bodies and consequently in their labour, as well as in the fruits of such labour. However, upon closer examination, what sounds comprehensible at first for both tangible and intangible goods might not be very convincing for intellectual goods. Locke had physical property in mind when formulating his labour-based theory and one of the reasons for the recognition of (private) property rights was the scarcity of such tangible resources. Scarcity is, in every sense, always potentially problematic. Yet, it has been put forward that it has the potential to cause even greater conflicts within a society if unambiguous property rights are not awarded in respect of the scarce goods. Moreover, it was and probably still is believed that private property ensures the most diligent handling of these scare resources. Whether or not all this is true is beyond the scope of this argument. But, even if it is true, an essential difference between physical resources and intellectual resources seems to be (deliberately) overlooked: Intellectual resources are not scarce; they are, at the very most, unjustly spread. On the contrary, the more we share and copy intellectual material the more we get. This unique characteristic of intellectual “property” is referred to as 'non-rivalrousness'. Thomas Jefferson, America's third president, put it more poetically and said that intellectual property is like a candle, when one candle lights another it does not diminish from the light of the first. Therefore, it can very well be argued that it is actually the regime of legal intellectual property protection that creates an artificial scarcity by means of a limited monopoly.
Why do I mention all this? Well, in my last column, I criticised the aggressive attitude of some in our movement and argued that we should rather revert to our better arguments to convince others. Surely, one of our best arguments is that the very theoretical, as well as philosophical foundation on which intellectual property protection is based is so seriously flawed. I just felt like “sharing” this with you!
tags: international policy-law intellectual-property copyright philosophy locke