14 
Concepts of Intellectual Property and Copyright
14 ADAM D. MOORE
Intellectual property is generally characterized as non-physical property that is the product of cognitive processes and whose value is based upon some idea or collection of ideas. Typically, rights do not surround the abstract non-physical entity; rather, intellectual property rights surround the control of physical manifestations or expressions. Intellectual property protects rights to ideas by protecting rights to produce and control physical instantiations of those ideas.
Legal protections for intellectual property have a rich history that stretches back to ancient Greece and further. As different legal systems matured in their protection of intellectual works, there was a growing refinement in the understanding of what it was that was being protected. From the ancients to the Enlightenment, several strands of moral justification for intellectual property have been offered: namely, personality-based, utilitarian, and Lockean. This essay will discuss all of these topics, focusing on Anglo-American and European legal and moral conceptions of intellectual property.
One of the first known references to intellectual property protection dates from 500 BC, when chefs in the Greek colony of Sybaris were granted year-long monopolies for creating particular culinary delights. In this case, caterers or cooks who invented new recipes were given exclusive rights to produce the dish for one year, the purpose of this grant being to encourage others to be inventive. There are at least three other notable references to intellectual property in ancient times—these cases are cited in Bruce Bugbee’s formidable work Genesis of American Patent and Copyright Law. In the first case, Vitruvius is said to have revealed intellectual property theft during a literary contest in Alexandria. While serving as judge in the contest, Vitruvius exposed the false poets who were then tried, convicted, and disgraced for stealing the words and phrases of others.
The second and third cases also come from Roman times (1st century AD). Although there is no known Roman law protecting intellectual property, Roman jurists did discuss the different ownership interests associated with an intellectual work and how the work was codified—for example, the ownership of a painting and the ownership of a table upon which the painting appears. The Roman epigrammatist Martial also makes reference to literary piracy; in this case, Fidentinus is caught reciting the works of Martial without citing the source:
Rumor asserts, Fidentinus, that you recite my works to the crowd, just as if they were your own. If you wish they should be called mine, I will send you the poems gratis; if you wish them to be called yours, buy my disclaimer of them. (Martial, Epigrams, cited in Bugbee, 167, n.15)
These examples are generally thought to be atypical; as far as is known, there were few institutions or conventions of intellectual property protection in ancient Greece or Rome. From Roman times to the birth of the Florentine Republic, however, there were many franchises, privileges, and royal favours granted surrounding the rights to intellectual works. Bugbee distinguishes between franchises or royal favours and systems of intellectual property in the following way: franchises and royal favours restrict access to intellectual works already in the public domain; thus these decrees take something from the people. The protection afforded to an inventor or author of a new original work by a system of intellectual property, on the other hand, deprives the public of nothing that existed prior to the act of invention.
One of the first statutes that protected authors’ rights was issued by the Republic of Florence on 19 June 1421, to Filippo Brunelleschi, the famous architect. This statute recognized the rights of authors and inventors to the products of their intellectual efforts; it also built in an incentive mechanism for the creators of intellectual property that became a prominent feature of Anglo-American intellectual property protection. For several reasons, including Guild influence, the Florentine statute of 1421 issued only the single patent to Brunelleschi. The basis of the first lasting patent institution of intellectual property protection is found in a 1474 statute of the Venetian Republic. This statute appeared 150 years before the Statute of Monopolies (1624), the first statutory expression of English patent law and, hence, widely regarded as the beginning of a statutorily regulated intellectual property regime in that country. The Statute of Monopolies, in many respects, was a forebear of the copyright legislation passed by the English Parliament 85 years later: the rights of inventors were recognized, an incentive mechanism was included, compensation for infringement was established, and a term limit on inventors’ rights was imposed.
In 1486 in Venice, however, Marcantonio Sabellico was granted what might be considered the first copyright for his history of the Venetian Republic, Decades Rerum Venetarum. Sabellico was given exclusive control over the publication of this book, and anyone found to violate this award was to be fined 500 ducats. Peter of Ravenna was awarded a similar grant for his Phoenix in 1491.
In France, a system of privileges was adopted as early as 1498, when rights to produce copies were granted for new books, maps, translations, and works of art, although these privileges were not necessarily offered to the original authors or producers of the work in question. Grants to authors and artists for writings, musical compositions, and designs were also found in Germany as early as 1511. Throughout the 15th and 16th centuries, there were various levels of protection for literary works in Europe—most enacted at the local level. By the mid-1500s, the arrival of printing in hundreds of cities across Europe (see 6) created local incentives for safeguarding the ownership of copies, but most forms of protection during this period were less than true copyrights as the notion of intellectual property today would be understood.
Instead, local guilds most often assumed responsibility for protecting their members’ properties by policing against piracy, both within and beyond their own ranks. In England, the Stationers’ Company, formally incorporated by royal charter in 1557, was active in this regard, especially in London. The pre-publication censorship of print in England—from the reign of Henry VIII to the Printing Act of 1662 (13 & 14 Car. II c. 33), also known as the Licensing Act—proved highly useful in establishing legitimate ownership of copies, because the Stationers’ Company regarded the registration of a copy in the Company’s Register as conferring legal entitlement to publish that copy.
Following the definitive lapse of the Licensing Act in 1695, An Act for the Encouragement of Learning (also known as The Statute of Anne or The Copyright Act) was passed by Parliament in 1709 to take effect in 1710. Widely considered to be the first statute of modern copyright, it begins:
Whereas Printers, Booksellers, and other Persons have of late frequently taken the Liberty of Printing, Reprinting, and Publishing … Books, and other Writings, without the Consent of the Authors or Proprietors … to their very great Detriment, and too often to the Ruin of them and their Families: For Preventing therefore such Practices for the future, and for the Encouragement of Learned Men to Compose and Write useful Books; May it please Your Majesty, that it may be Enacted … (8 Anne c. 19)
The law gave protection to the owner of a ‘copy’, originally the author, but typically the bookseller, by granting fourteen-year copyrights, with a fourteen-year renewal possible if the author was still alive. Works already in print were entitled to protection for 21 years, with no possibility of renewal.
In the landmark case Millar vs Taylor (1769), the inherent rights of copy owners to control their copies, independent of statute or law, was affirmed. Instead of viewing literary property as mere legal rights created by a legislative body or sovereign, Millar affirmed the perpetual moral and common law rights of authors, who might, in turn, assign some of these rights to another party through the sale of their copies. Five years later, the Millar decision was overruled in Donaldson vs Becket (1774). In Donaldson, the court held that the Statute of Anne superseded the inherent rights of authors and copy-owning booksellers. Protections and remedies were limited to what was prescribed by positive law. Nevertheless, the practice of recognizing the rights of authors, as such, had begun. Other European countries, including Belgium, The Netherlands, Italy, and Switzerland, followed the example set by England. Various more recent international treaties, such as the Berne Convention (1886) and the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement (1994), have expanded the geographical scope of intellectual property protection to include most of the globe.
At the most practical level, contemporary understandings of literary property are largely delineated in Anglo-American copyright law, in the law of ideas, and in the moral rights granted to authors and inventors within the continental European doctrine. Although these legal institutions do not constitute an exhaustive list, they nonetheless provide a rich starting point for understanding literary property. Accordingly, we shall take up each of these three areas in turn.
The domain of US copyright protection is original works of authorship fixed in any tangible medium of expression (17 U.S.C. § 102 (1988)). Works that may be copyrighted include literary, musical, artistic, photographic, architectural, and cinematographic works; maps; and computer software. For something to be protected, it must be ‘original’—the work must be the author’s own production; it cannot be the result of copying (Bleistein vs Donaldson Lithographing Co., 188 U.S. 239 (1903)). A further requirement that limits the domain of what can be copyrighted is that the medium of expression must be ‘non-utilitarian’ or ‘non-functional’ in nature. Utilitarian products, or products that are useful for work, fall, if they fall anywhere, within the domain of patents. Finally, rights only extend over the actual concrete expression and the derivatives of the expression—not to the abstract ideas themselves. For example, Einstein’s Theory of Relativity, as expressed in various articles and publications, is not protected under copyright law. Someone else may read these publications and express the theory in other words and even receive a copyright for that particular expression. Some may find this troubling, but such rights are outside the domain of copyright law. The individual who copies abstract theories and expresses them in other words may be guilty of plagiarism, but cannot be held liable for copyright infringement.
There are five exclusive rights that copyright owners enjoy, and three major restrictions on those rights. The five rights are: the right to reproduce the work; the right to adapt it or derive other works from it; the right to distribute copies of the work; the right to display the work publicly; and the right to perform it publicly. Under US copyright law, each of these rights may be individually sold, separately from the others, by the copyright owner. All five rights lapse after the lifetime of the author plus 70 years—or, in the case of works for hire, the term is set at 95 years from publication or 120 years from creation, whichever comes first. Aside from limited duration (17 U.S.C. § 302), the rules of fair use (17 U.S.C. § 107) and first sale (17 U.S.C. § 109(a)) also restrict the rights of copyright owners. Although the notion of ‘fair use’ is notoriously hard to define, it is a generally recognized principle of Anglo-American copyright law that it allows anyone to make limited use of another’s copyrighted work for such purposes as criticism, comment, news reporting, teaching, scholarship, and research. The ‘first sale’ rule prevents a copyright holder who has sold copies of a protected work from later interfering with the subsequent sale of those copies. In brief, the owners of copies can do what they like with their property, short of violating the copyrights previously mentioned.
Beyond the regime of copyright, there is a substantial set of case law that allows individuals to protect mere ideas as personal property. This system of property is typically called the ‘law of ideas’. A highly publicized case in this area is Buchwald vs Paramount Pictures (13 U.S.P.Q. 2d BNA 1497 (Cal. Super. Ct. 1990)), concerning the Eddie Murphy movie Coming to America (1988). The law of ideas is typically applied in cases such as this one, where individuals produce ideas and submit them to corporations expecting to be compensated. In certain instances, when these ideas are used by the corporation (or anyone) without authorization, compensation may be required. Such was the court’s finding in the Buchwald case, and Paramount Pictures was required to compensate Buchwald for providing the idea that subsequently became a film. Before concluding that an author has property rights to the idea(s), courts require the idea(s) to be novel or original (Murray vs National Broadcasting Co. Inc., 844 U.S. F.2d 988 (2nd Cir. 1988)) and concrete (Hamilton Nat’l Bank vs Belt 210 F.2d 706 (D.C. Cir. 1953)). Compensation is offered only in cases of misappropriation (Sellers vs American Broadcasting Co. 668 F.2d 1207 (11th Cir. 1982)).
Article 6bis of the Berne Convention articulates the notion of ‘moral rights’ that are included in continental European intellectual property law:
Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation. (Article 6bis, Berne Convention)
The doctrine protects the personal rights of creators, as distinguished from their economic rights, and is generally known in France as ‘droits morals’ or ‘moral rights’. These moral rights consist of: the right to create and to publish a work in any form desired; the creator’s right to claim the authorship of his work; the right to prevent any deformation, mutilation, or other modification thereof; the right to withdraw and destroy the work; the prohibition against excessive criticism; and the prohibition against all other injuries to the creator’s personality. Much of this doctrine has been incorporated in the Berne Convention; as Martin Roeder, commenting on the doctrine of the creator’s moral rights, affirms:
When an artist creates, be he an author, a painter, a sculptor, an architect or a musician, he does more than bring into the world a unique object having only exploitive possibilities; he projects into the world part of his personality and subjects it to the ravages of public use. There are possibilities of injury to the creator other than merely economic ones; these the copyright statute does not protect. (Roeder, 557)
It should be noted that granting moral rights of this sort goes beyond a mere expansion of the rights conferred on property holders within the Anglo-American tradition. Although many of the moral rights listed above could be incorporated into copyright and patent law, the overall content of these moral rights suggests a new domain of intellectual property protection. This new domain of moral rights stands outside the economic- and utilitarian-based rights granted within the Anglo-American tradition. This is to say that, independent of social and economic utility—and sometimes in conflict with it—authors and inventors have rights to control the products of their intellectual efforts.
Arguments for intellectual property rights have generally taken one of three forms. Personality theorists maintain that intellectual property is an extension of individual personality. Utilitarians ground intellectual property rights in social progress and incentives to innovate. Lockeans argue that rights are justified in relation to labour and merit. Although each of these strands of justification has its weaknesses, there are also strengths unique to each.
Personality theorists such as Hegel maintain that individuals have moral claims to their own talents, feelings, character traits, and experiences. In this sense, individuals are self-owners. Control over physical and intellectual objects is essential for self-actualization—by expanding our selves outward beyond our own minds and mixing these selves with tangible and intangible items, we both define ourselves and obtain control over our goals and projects. In his Elements of the Philosophy of Right (1821), Hegel argued that the external actualization of the human will requires property. Property rights are important in two ways according to this view. First, by controlling and manipulating objects, both tangible and intangible, our will takes form in the world, and we obtain a measure of freedom. Individuals may use physical and intellectual property rights, for example, to shield their private lives from public scrutiny and to further their own goals and projects. Secondly, in some cases our personality becomes fused with an object—thus moral claims to control feelings, character traits, and experiences may be expanded to both tangible works, such as a novel or screenplay, and to intangible works, such as a new, more cost-effective method for producing a commodity, or even the imagined plot for a new novel or screenplay.
There are at least four problems with this view. First, it is not clear that we own our feelings, character traits, and experiences. Although it is true that we have possession of these things or that they are a part of each of us, an argument is needed to establish the relevant moral claims. Secondly, even if it could be established that individuals own or have moral claims to their personality, it does not automatically follow that such claims are expanded when personalities are expressed in tangible or intangible works. Perhaps this sort of expression—one where the author’s personality becomes a part of an artefact—should be viewed as an abandonment of personality. Moreover, misrepresenting an intellectual work (assuming there are no moral rights to these expressions) might change the perception of an author’s personality, but it would not in fact change his or her personality. Thirdly, assuming that moral claims to personality could be expanded to tangible or intangible items, an argument justifying property rights would still be needed. Personality-based moral claims may warrant nothing more than use rights or prohibitions against alteration. Finally, there are many intellectual innovations in which there is no evidence of a creator’s personality—a list of customers or a new safety-pin design, for example. Given these challenges, personality-based theories may not provide a strong moral foundation for legal systems of intellectual property.
Even if the force of these objections is acknowledged, there does seem to be something intuitively appealing about personality-based theories of intellectual property rights. Suppose, for example, that Mr Friday buys a book—the only copy of a long-lost Crusoe original. Friday takes the book home and alters some of the text. The additions are so clever that Friday decides to display the altered work in a library exhibition. There are at least two ethical worries to consider in this case. First, the alterations by Friday may cause unjustified economic damage to Crusoe. Secondly, and independent of the economic considerations, Friday’s actions may damage Crusoe’s reputation. The integrity of the book has been violated without the consent of the author, perhaps causing long-term damage to his reputation and his standing in the community. If these claims are sensible, then it appears that the existence of personality-based moral ‘strings’ attaching to certain intellectual works is being acknowledged. By producing intellectual works, authors and inventors put themselves on display, so to speak, and incur certain risks. Intellectual property rights afford authors and inventors a measure of control over this risk.
To put the point in a different way, it is the moral claims attached to personality, reputation, and the physical embodiments of these individual goods that justify legal rules covering damage to reputation and certain sorts of economic losses. Moreover, personality-based theories of intellectual property often appeal to other moral considerations. Hegel’s personality-based justification of intellectual property rights included an incentive-based component as well. Perhaps the best way to protect these intuitively attractive personality-based claims to intangible works is to adopt a more comprehensive system designed to promote progress and social utility.
In terms of ‘justification’, modern Anglo-American systems of intellectual property are typically modelled as incentive-based and utilitarian (Machlup; Hettinger; Moore, 2001). On this view, a necessary condition for promoting the creation of valuable intellectual works is granting limited rights of ownership to authors and inventors. In the absence of certain guarantees, authors and inventors might not engage in producing intellectual property. Thus control is granted to authors and inventors of intellectual property, because granting such control provides incentives necessary for social progress. Although success is not ensured by granting these rights, failure is inevitable if those who incur no investment costs can seize and reproduce the intellectual effort of others. Adopting systems of protection such as copyrights, patents, and trade secrets may aid in an optimal number of intellectual works being produced, and a corresponding optimal degree of social utility. Coupled with the theoretical claim that society ought to maximize social utility, this is a simple yet powerful argument for the protection of intellectual property rights.
Given that this argument rests on providing incentives, a critique would need to illustrate better ways, or equally good ways, of stimulating production without granting private property rights to authors and inventors. It would, for example, be better to establish equally powerful incentives for the production of intellectual property that did not also require initial restricted use guaranteed by rights (Machlup; Moore, 2001). One alternative to granting intellectual property rights to inventors as incentive is government support of intellectual labour (Hettinger). Such a measure could take the form of government-funded research projects, with the results immediately becoming public property. The question becomes: can government support of intellectual labour provide sufficient incentive to authors and inventors so that an equal or greater quantity and quality of intellectual products are created compared to what is produced by conferring limited property rights? Better results might also be had if fewer intellectual works, but of a higher quality, were distributed to more people.
Unlike the current government-supported system of intellectual property rights, reward models may be able to avoid the problems of allowing monopoly control and restricting access, and at the same time provide incentives to innovate. In this model, innovators would still labour sedulously, seeking to profit from their work, and governments would not have to decide which projects to fund, nor determine appropriate rewards before a work’s ‘social value’ was known. Funds necessary to pay the rewards could be drawn from taxes or from collecting percentages of the profits of these innovations. Reward models may also avoid the disadvantages of monopoly pricing, and obstructions to further adaptation and innovation.
Finally, empirical questions about the costs and benefits of copyright, patent, and trade secret protection are notoriously difficult to determine. Economists who have considered the question indicate that either such determinations are perilously inexact, or that other arrangements would be better (Machlup). If we cannot appeal to the progress-enhancing features of intellectual property protection, then the utilitarian can hardly appeal to such progress as justification.
The utilitarian may well agree with many of these criticisms and still maintain that intellectual property rights, in some form, are justified—a system of protection is better than nothing at all. Putting aside the last criticism, all of the worries surrounding the incentive-based approach appear to focus on problems of implementation. A government could tinker with its system of intellectual property, cutting back on some legal protections and strengthening others (Croskery). Perhaps it could include more personality-based restrictions on what can be done with an intangible work after the first sale, limit the term of copyrights, patents, and trade secrets to something more reasonable, and find ways to embrace technologies that promote access while protecting incentives to innovate. The utilitarian might also point to the costs of changing the current system of intellectual property.
A final strategy for justifying intellectual property rights begins with the claim that individuals are entitled to control the fruits of their labour (Hettinger; Himma, 2006; Moore, 2001). Labouring, producing, thinking, and persevering are voluntary pursuits, and individuals who engage in these activities are entitled to what they produce. Subject to certain restrictions, rights are generated when individuals mix their labour with an unowned object. The intuition is that the person who clears unowned land, cultivates crops, builds a house, creates a new invention, or writes a book obtains property rights by engaging in these activities.
A more formal version of Locke’s famous argument is that individuals own their own bodies and labour—i.e. they are self-owners. When an individual labours on an unowned object, the labour becomes infused in the object, and for the most part, the labour and the object cannot be separated. It follows that once a person’s labour is joined with an unowned object, assuming that individuals exclusively own their bodies and their labour, rights to control are generated. Writing a book is a good case in point; the author takes an unowned, commonly held entity—language—and applies labour to it, thus producing a sequence of words and ideas that the author justly owns and has the right to control or to sell (say, to a publisher). The central Lockean idea is that there is an expansion of rights: individuals each own their labour and when that labour is mixed with objects in the commons (i.e. the natural and cultural resources available to all, or the vast majority, of people in society), individual rights are expanded to include these goods.
Locke’s argument is not without difficulties. Waldron argued that the idea of mixing one’s labour is incoherent—actions cannot be mixed with objects. In Qu’est-ce que la propriété? (1840), Proudhon argued that if labour was important, the second labour on an object should ground a property right in an object as reliably as the first labour. Nozick asked why labour-mixing generated property rights rather than a loss of labour. Waldron has argued that mixing one’s labour with an unowned object should yield more limited rights than rights of full ownership. Finally, if the skills, tools, and inventions used in labouring are social products, then perhaps individual claims to title have been undermined (Hettinger).
Among defenders of Lockean-based arguments for private property, these challenges have not gone unnoticed (Moore, 2001, 2012). Rather than rehearsing the points and counterpoints, a modified version of the Lockean argument might be considered—one that does not so easily fall prey to the objections mentioned above.
Let us imagine that, after years of effort, Smith creates a highly original and entertaining work of fiction. Would anyone argue that Smith does not have at least some minimal moral claim to control the story that he has created? Suppose that Jones reads a selected extract from Smith’s story and desires to purchase access to the entire work. Is there anything morally dubious about an agreement between them that grants Jones a limited right to have access to Smith’s story, provided that Jones does not publish it himself? It must be remembered that Jones can decide without compulsion that he does not wish to agree to Smith’s terms, and that Jones is free to read something else, or to create his own literary work. Arguably, part of the moral weightiness of the agreement between Smith and Jones relies on the fact that Smith holds legitimate title to the story because it is the outcome of his labour. The evident legitimacy of such moral claims and contracts between two parties known to each other may provide the foundations for legal protections of intellectual works on a broader scale (Moore, 2012).
Putting aside the strands of argument that seek to justify moral claims to intangible works and the particular problems that opponents of these views offer in reply, there are several more general critiques of the rights to control intellectual property to consider.
Many have argued that the non-rivalrous nature of intellectual works—that is, that the use of a work by one individual does not limit the use of that same work by others—grounds a prima facie case against rights to restrict access. Because intellectual works are not typically consumed by their use and can be used by many individuals concurrently (making a copy does not deprive anyone of personal possessions), there is a strong case against moral and legal intellectual property rights (Jefferson, 3, art. 1, sect. 8, clause 8, document 12; Hettinger). One reason for the widespread pirating of intellectual works is that many people think restricting access to these works is unjustified.
The weak point in this argument is the assumption that the non-rivalrous nature of intellectual works justifies a presumption in favour of access. Yet sensitive personal information, like a diary, provides a case in point. Moore argues that just because this information can be used and consumed by many individuals concurrently, it is false to claim that a prima facie moral claim to maximal access is established. This argument applies as well to violent films, pornography, information related to national security, personal financial information, and private thoughts; each is non-rivalrous, but this fact does not by itself generate prima facie moral claims for access and use. Moreover, it is by no means clear that unauthorized copying does no harm to the owner, even in cases where the individual who has appropriated the owner’s property without tendering compensation would not have purchased a copy legitimately—i.e. for the required fee—and thus is not denying the owner economic compensation that would otherwise have been received. Unauthorized copying creates risks that owners must bear without their consent (Moore, 2012).
According to some, protecting or creating intellectual property rights is inconsistent with our commitment to freedom of thought and speech (Hettinger; Waldron). Hettinger argues that intellectual property ‘restricts methods of acquiring ideas (as do trade secrets), it restricts the use of ideas (as do patents), and it restricts the expression of ideas (as do copyrights)—restrictions undesirable for a number of reasons’ (Hettinger, 35).
Two sorts of reply have been offered to this kind of worry. The first notes that it is the incentives found in providing limited protection that foster the creation and dissemination of information—a system of intellectual property protection may cause restricted access in the short run, but over time, the commonly held supply of thought and expression available to the public at large is enhanced. Secondly, it is not at all clear that free speech as a social value is so presumptively weighty a good, or so determinative a principle, that it nearly always trumps other competing values (Moore, 2012).
A growing school of thought maintains that information is a social product, and that enforcing access restrictions unduly benefits authors and inventors, effectively diminishing the common good of society at large. Because individuals are raised in societies that endow them with knowledge which these individuals then use to create intellectual works of all kinds, the building blocks of intellectual works—knowledge—should be understood as a social product. Hence, individuals should not have exclusive and perpetual ownership of the works that they create, because these works are built upon society’s shared knowledge. Allowing rights to intellectual works would be similar to granting ownership to the individual who placed the last brick in a publicly financed dam. The dam is a social product, built up by the efforts of hundreds; knowledge, upon which all intellectual works are built, is built up in a similar fashion.
Many of those in the modern copyleft or creative commons movement echo these sentiments. In the US, Creative Commons, a non-profit organization (founded in 2001) at the vanguard of the copyleft movement, seeks to increase the number and range of works that are freely available to others, so that those works may be legally shared and used for individual enjoyment and the enlargement of the public good. Creative Commons licences, issued free of charge to the public, replace the standard ‘all rights reserved’ assertion of copyright management with a ‘some rights reserved’ declaration, thereby allowing each creator of a work to yield some rights to the public without compensation, while retaining others. This attempt at establishing a more reasonable and flexible copyright regime that more equitably balances the creator’s rights with the common good, has, despite some criticisms, gained considerable momentum; in 2011, more than 100 Creative Commons affiliates were at work in more than 70 legal jurisdictions from Argentina to Vietnam.
Beyond challenging whether the notion of ‘society’ employed in this line of reasoning is clear enough to carry the weight that the argument demands, critics have questioned the view that societies can be owed something, or that they can own or deserve something (Nozick; Moore, 2012). In 1855, Lysander Spooner wrote:
What rights society has, in ideas, which they did not produce, and have never purchased, it would probably be very difficult to define; and equally difficult to explain how society became possessed of those rights. It certainly requires something more than assertion, to prove that by simply coming to a knowledge of certain ideas—the products of individual labor—society acquires any valid title to them, or, consequently, any rights in them. (Spooner, 3.103)
Finally, even if a defender of this view can justify societal ownership of general pools of knowledge and information, it could be argued that the use of this collective wisdom has already been rewarded by paying for education and the like (Moore, 2001, 2012).
Protecting the intellectual and literary creations of authors and inventors has a rich history stretching back to the Middle Ages and earlier. In most cases, sociopolitical contexts and economic forces active at the time played an important role in shaping these early rules. Many of these same forces drive the current debate. Content providers want protection as a matter of right and economics. Content consumers, on the other hand, desire access. The proliferation of digital technology has highlighted the tensions between advocates on both sides. The history, arguments, and challenges surrounding the current debates concerning copyright and intellectual property may help to adapt existing institutions, or to create new intellectual property regimes, that most appropriately balance the competing interests of content creators and consumers.
B. Bugbee, Genesis of American Patent and Copyright Law (1967)
P. Croskery, ‘Institutional Utilitarianism and Intellectual Property’, The Chicago-Kent Law Review, 68 (1993), 631–57
E. C. Hettinger, ‘Justifying Intellectual Property’, Philosophy & Public Affairs, 18 (1989), 31–52
K. E. Himma, ‘Justifying Intellectual Property Protection: Why the Interests of Content-Creators Usually Wins Over Everyone Else’s’, in Information Technology and Social Justice, ed. E. Rooksby (2006)
—— ‘The Justification of Legal Protection of Intellectual Rights’, San Diego Law Review, 50 (2013)
—— ‘Toward a Lockean Moral Justification of Legal Protection of Intellectual Property’, San Diego Law Review, 49 (2012), 1105–81
J. Hughes, ‘The Philosophy of Intellectual Property’, Georgetown Law Journal, 77 (1997) 88–9, 287–366
T. Jefferson, The Writings, ed. A. A. Lipscomb and A. E. Bergh (20 vols, 1904–5)
L. Lessig, Free Culture (2004)
F. Machlup, Production and Distribution of Knowledge in the United States (1962)
R. Merges, Justifying Intellectual Property (2011)
A. D. Moore, Intellectual Property and Information Control (2001; repr. 2004)
—— ‘A Lockean Theory of Intellectual Property Revisited’, San Diego Law Review, 49 (2012) 1069–103
R. Nozick, Anarchy, State, and Utopia (1974)
Primary Sources on Copyright (1450–1900), http://copy.law.cam.ac.uk/cam/index.php, consulted Mar. 2013
P.-J. Proudhon, Qu’est-ce que la propriété? (1840)
M. Roeder, ‘The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators’, Harvard Law Review, 53 (1939–40), 554–78
N. Shaler, Thoughts on the Nature of Intellectual Property and its Importance to the State (1878)
L. Spooner, The Law of Intellectual Property, in The Collected Works of Lysander Spooner, ed. C. Shively (6 vols, 1971)
J. Waldron, ‘From Authors to Copiers: Individual Rights and Social Values in Intellectual Property’, Chicago-Kent Law Review, 68 (1992–3), 841–87