Is 'Intellectual Property' Property?
The following is a post by guest-author Peter Miller.
Here I would like to discuss my views on intellectual property (abbreviated IP). First, I will give a brief description of my understanding of the current laws on IP around the world in general, and second, I will give arguments which attempt to demonstrate that intellectual property is not a legitimate type of property at all. Finally, I will demonstrate that intellectual property laws are not needed for artists and creators to control and profit from their own work.
Laws in most countries currently recognize three types of property: real property, personal property and intellectual property. An example of real property would be land, or a house – it is basically anything that cannot be moved. Personal property then covers the remaining tangible objects which can be moved – things like apples, cars, clothes and gold. Finally, intellectual property covers certain types of intangible notions. There are currently 4 types of intellectual property:
– copyright (ie. rights to an idea)
– patents (ie. rights to a practical implementation)
– trade secrets
A copyright is essentially a license to sue. In most western countries this is automatically granted to the creator of the work (whether or not they want this right) at the time when the work is placed on a physical medium. Copyright may apply to a wide range of creative, intellectual, or artistic forms, or “works”. Specifics vary by jurisdiction, but these can include poems, theses, plays, movies, dances, musical compositions, audio recordings, paintings, drawings, sculptures, photographs, software, radio and television broadcasts. Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed. For example, the copyright to a Mickey Mouse cartoon restricts others from making copies of the cartoon or creating derivative works based on Disney’s particular anthropomorphic mouse, but does not prohibit the creation of other works about anthropomorphic mice in general, so long as they are different enough to not be judged copies of Disney’s. In many jurisdictions, copyright law makes exceptions to these restrictions when the work is copied for the purpose of commentary or other related uses.
Patents on the other hand are not automatically granted – if someone wants a patent then they must file for one with the US Government’s patent office. Patents are a legal monopoly on the manufacture, use, or sale of the invention in question. Contrary to common perception, patents are not a positive right for the owner to personally use their own invention – they are a legal right granted to the owner to prevent others from using the patented invention. The inventor does not need to manufacture or sell the invention in question in order to obtain a patent on it. This has led to scenarios in which people have patented the action of using a playground swing or finger motions on a mobile phone touch screen, and therefore have the legal right to sue others who perform these actions without the consent of the patent holder. It should be noted that neither independent invention nor prior invention are grounds for defense against patents. Once a patent is filed then it becomes public record and its full details can be found online.
It is also worth noting that there are currently three non-tangible classes which are not classifiable as property:
– laws of nature (eg. gravity)
– natural phenomena (eg. the concept of getting older, or the sunrise)
– abstract ideas (such as philosophies or mathematical equations)
Now that I have given a description of the current intellectual property situation from a legal standpoint, I will provide some philosophical arguments against intellectual property.
Patents are a no-brainer. From a utilitarian point of view, patents result in a net loss to society as they stifle competition. Any first year economics student will know that monopolies are inefficient – the monopoly has no need to reduce its prices or increase their quality due to competitors offering the same goods or services cheaper – because, by definition, a monopoly has no competitors. Generally speaking, monopolies are only able to maintain their power due to the intervention of forceful governments, and patents are a prime example. A case-in-point is that of the Wright brothers, who are supposed by many to have been the first to invent powered, heavier than air flight. The Wright brothers patented the aileron around the time when many other inventors were also experimenting with similar technologies. They then proceeded to sue any inventor who even came close to using a similar invention. Were it not for their ferocious use of patents, powered air-flight might have been available years earlier. The Wright’s vigorous use of patents stagnated the US aviation industry for decades, while the French rejection of such patents led to their market dominance until nearly the Second World War. Nearly every single notable aircraft from the first few decades of flight was the result of the French aircraft industry. Today one has only to look at the billions of dollars wasted on patent wars by technology giants to see that the problem is still rampant.
A comparison of two markets – one which is highly regulated by patents and one in which no patents currently exist – reveals these differences. In the USA, almost all medicine is patented; however no patents have been issued to the fashion industry for clothing. As a result, the USA has the most expensive prescription drug prices in the world, and very low prices for clothing. Proponents of pharmaceutical patents often argue that granting the exclusive monopoly on a new chemical formula enables the company to recoup the losses incurred during the R&D phase. This, however, is a fallacy. The fashion industry also incurs very large R&D costs through setting up factories for the design of, say, a new sneaker model. However, due to competition, the price of a pair of sneakers is constantly being reduced. If the fashion industry were heavily regulated by patents, then we would see far fewer models of shoe in the stores and their prices would be far higher. Imagine going to the shop finding that the cheapest pair of shoes cost $1000 and being told by the salesman, “yeah, I know it’s expensive, but look, Nike has to recoup the costs of building their factory”. The fact that this does not happen in the fashion industry indicates that it is unnecessary in any other industry.
Aside from these utilitarian arguments against patents, I can think of two other main arguments against patents. Both are rights-based and both can be demonstrated from the same hypothetical scenario: somebody patents the motion of putting eating utensils up to the mouth (eg. forks, spoons, chopsticks). This person then uses his patent to sue people whenever they eat with anything other than their hands. If the people do not want to pay, he will sue them to court, and because he owns the patent, he always wins. Some of the people cannot afford to pay him the relatively large amount he is suing for, and so they go to prison for a period.
First, this scenario demonstrates that the patent system is responsible for a restriction on individual liberty. People performing non-violent actions, which affect nobody but themselves, have had violent force used against them due to the patent system. Note that you will probably only find this argument compelling if you are of the opinion that violent force should never be used against peaceful people. I do hold this position, but I suspect that I am in the minority.
Second, the scenario also demonstrates that the patent system is responsible for a restriction on the use of one’s own property. I am of the opinion that, once I have justly acquired something, I am free to use it as I wish, so long as I do not violate anybody else’s natural rights by doing so. Ownership is the ultimate right to control. I use my kitchenware as I wish, without feeling the need to consult a governing body. If I were forced to consult with a governing body before using certain items in my house, I would not have an ultimate claim to those items, so they would not be entirely my property. Interestingly, this is generally the case in western countries even aside from the patent system – governments place regulations on people’s own possessions, generally under the guise of the greater good or some other such nonsense. A few examples that spring to mind are mandatory fences around swimming pools and requirements for people to obtain certification before conducting electrical work within their houses. Again, I am certain that I am in the minority of people who see this as a bad thing – not because I like the idea of people drowning their children or starting house fires, but because a free market in which 100% ownership of property is permitted can offer far better solutions to these problems than any one-size-fits-all State regulation.
Continuing on to discuss copyright infringement.
One argument against copyright is the logical demonstration that copyright is actually impossible to enforce. For example, say I buy a DVD which is copyrighted and I alter it slightly then re-sell it as my own. If the copyright only applied to 100% of the data on that DVD, then I would not be breaching copyright. But then this would mean that I could alter a single pixel in a single frame and still pass the movie off as my own. So maybe a better copyright law would then be that I would have to change more than 30% if I wanted to sell the DVD as my own. However this still poses problems. I might get a friend and each of us would divide the movie in half – he would take the top 50% of every frame and I would take the bottom 50% of every frame. We would then each sell our product online and the user could use special software to recombine the two halves and watch the movie.
Clearly, laws which state that copyright applies to any given percentage of the original work, ranging from 0.000001% up to 99.9999%, do not actually prevent a user from modifying some (possibly small) detail to circumvent the law, and rendering it a meaningless and arbitrary limit. This only leaves copyright laws for the cases of 0% and 100% of the original work. Nobody would be foolish enough to say that 0% of a work is a valid amount to be copyrighted – since 0% is actually no work at all – and would lead to the bizarre scenario of one person suing another for no particular reason – and winning! But what about 100%? The 100% scenario poses a slightly different problem – that of original thought. Any copyrighted material will be made up of smaller parts – if it is a book, it will be made up of words, if it is a DVD, it will be made up of bytes burned onto the plastic, if it is a dance, it will be made up of memorized moves, etc. None of these constituent elements can themselves be subject to copyright, since they are far too common and elementary. Therefore, these constituent elements are free to be distributed (by any means that knowledge can be distributed). Again, this opens the opportunity to circumvent copyright laws. For example, I might assign a number to every word in a book. I would then post one word and its number on my website. If the book has 100,000 words, then 100,000 people could do the same thing and a clever computer script could go and fetch all of these words and recombine the book for me to read. If I were to go to court then I could say that I had not copied anything at all because the word is too elementary to be copyrighted and so is the number.
But aside from the demonstration that copyright is virtually impossible to enforce, what about the morality of copyright? After all, being able to take an action and get away with it is not the same as that action being moral. Let’s say I put a lot of effort into an idea I am working on – maybe it’s a book I am writing on my computer, and somebody “steals” that data from me and goes on to make a lot of money from it – don’t I have the right to their money because I put in the effort to come up with the book in the first place? Well… unfortunately for me, I don’t believe so. Before I explain why, I will first need to describe some of the ideas within this question itself:
First, all value is subjective. This means that there is no absolute method to determine the worth of a good or service other than to actually exchange it with someone else for something else. Most exchanges in our world are goods or services for money, but this need not be so. Goods or services can also be exchanged directly with one another – this is called barter. In both cases, the important thing to note is that both parties decided to voluntarily trade their goods or services so that they could both become better off than before. If they did not think that they could become better off through this voluntary exchange, they simply would not have undertaken the exchange.
Second, no matter how certain the future seems, it always contains some unquantifiable degree of unknown. Life is far from predictable – some things which we might rely on throughout our entire lifetime, then suddenly, they may change without warning. Negative examples of such events might be an earthquake which destroys homes, or the outbreak of a deadly virus. Positive examples of such events might be the coincidental meeting of a future spouse, or the unexpected winning of some large amount of money.
With these ideas in mind, the question of whether it is immoral to copy a book from someone then sell it for personal profit becomes a bit clearer. One underlying premise in the original scenario was that the value of the resulting book sales could be determined from the level of effort input. But as I have already demonstrated, this is not the case, as value is a subjective measure. My book might have been horribly unreadable, and no matter how much effort was put into it, the book might just be worthless. The book might never have sold any copies at all! Before selling the book, one has absolutely no way of knowing what the book was worth to other people. The only way to find out what the book is worth is to actually sell it and see if people buy it. Since I did not do this myself, then I have no right to any resulting profit.
The final thing to consider is the nature of property. If a thing can be stolen, it is because it can be taken away from its original owner. However, intellectual property is a state on a physical medium, not the physical medium itself. That physical medium can be considered private property, but the state of that physical medium cannot. This is because state is copyable, but the physical medium is not. Even if I own a very large number of say, unopened beer cans, if you take one away from me then, I will not be able to drink the one you have taken. It doesn’t matter to me that I have a lot more left – they were all mine and when you took one then I was deprived of it.
The anarcho-syndicalists, who do not believe in private property at all, generally reject capitalism because they see private property as exploitative. Proudhon states that the very notion of private property is theft. By this he means that private property deprives others of the ability to use the good or service in question. While such a definition of exploitation is absurd, the general premise is grounded in truth – property can only be considered to be privately owned when others do not have access to it.
This leads to the conclusion that intellectual property is not property at all, because it is infinitely reproducible. If it is copied from me, I still retain the original. I can try and keep it away from others, and so long as I succeed, my intellectual property can be considered private property. As soon as someone else has it, their copy is no longer mine to command. They may respect my wishes out of politeness or friendship but they are under no obligation to do so. I have no rights over their property except by their consent.
One objection to the discussion so far is that a functioning modern society requires some means of profiting from intangible ideas and advancements. Generally speaking, I agree. I will now propose some solutions that demonstrate how artists and creators can retain full control of their work, even in the complete absence of intellectual property laws.
The first step is of course to restrict access to the work in question while the creator is in the design stage. There are many ways to do this:
– digital data can be encrypted with a strong password (some computer operating systems can do this for an entire disk)
– ideas written or printed on paper can be placed in a safe place – perhaps literally in a safe, or behind a locked door
– physical inventions can likewise be hidden or placed behind a locked door
Restricting access is fine when an artist or creator works alone, but what if they wish to work in conjunction with others? Once the coworker has access to the work then they could potentially copy it and sell it – which may be undesirable for the original creator. Clearly the reputation of coworkers becomes a concern to the creator. There are many ways to handle the issue of trust:
– the coworker could sign a contract stating that they will not use the work without the consent of the original creator
– the original creator could only choose coworkers who are known to be extremely trustworthy
– the original creator could reveal different parts of their work to various different coworkers so that nobody other than the original creator is capable of fully reconstructing the work
– the coworker could deposit some kind of security to be forfeited in the case of a leak
– the original creator could take out insurance against a leak and thereby pass the problem of trust on to another body
There are certainly other solutions to this problem. The chosen option will depend on the circumstances the original creator faces, as well as their own temperament. While this issue may sound complicated, it must be remembered that none of these options are novel – they have all been used extensively with great success in the past.
Another key issue is the sale of the work once it is completed. The barriers to copying the work are quite important at this stage. For example, if the work is a new invention that is expensive or difficult to make (a new type of car or a blood cleaning nanobot), there is little risk that someone else will immediately copy the work and corner the market. In this case, being first to market affords the creator a large advantage over potential competitors. In combination with advertising, being first to market is likely to ensure that the creator gains significant profits and establishes their place in the market for many years to come.
If the barriers to copying are low, or nonexistent (a music CD, or textbook which could be photocopied or scanned) then the creator must be clever about their sale strategy if they wish to make profit. In the case of music, the creator could sell specially signed CD copies, do live tours, sell merchandise, or release the CD in stages via a website to bring in advertising revenue. Likewise a textbook could contain advertisements down the sides of the pages, or could be available to download via a website which would bring in advertising revenue. There are an infinite number of possible solutions to generating revenue from non-property works.
I will close with a quote from one famous man who definitely believed in copying the intellectual property of others for his own profit – Sir Isaac Newton: “If I have seen further it is by standing on the shoulders of giants”.