[Originally posted on Positive Liberty on Aug 15th 2005]
There are two elements of property that are usually merged, but which in the context of intellectual property are not necessarily connected: (1) the moral right of a person to the use and enjoyment of the property in question, and (2) the moral right of the owner to forbid another person from using or enjoying the property in question.
In the case of tangible property, real or personal, the second flows naturally from the first, because the property is naturally exclusive, meaning that if I have it, you simply cannot; if I take it, you no longer have it—you have been “disseised.” Intellectual property, however, is not like this. I can “take” it from you, and yet you still have it. If, for example, you are the greatest musician in the history of rock and roll (that is, John Fogerty) and you have written the greatest song ever (that is, “Born on The Bayou,” from the glorious 1968 album Bayou Country), then I can sing “Born on The Bayou” in my shower, and you can still, at the same time, use and enjoy your “property” as you wish: you can perform it, sell it, or leave it alone. Elements (1) and (2) are separated—your moral right (assuming it exists) to use and enjoy your song does not necessarily entitle you to forbid me from simultaneously using and enjoying your song. Thus, any defense of intellectual property as a natural right must account for both of these elements.
In addition, any justification for intellectual property as a natural right must account for three complications: (a) the innocent simultaneous creator, (b) “fair use,” and (c) derivative works.
The innocent simultaneous creator is the person who, unaware of your work, and without copying any of your ideas, comes up with a thing which you also come up with. But because you make it to the patent office first, you get the patent on that thing, and can therefore forbid the other person from making or selling his thing. Even if intellectual property is a natural right, that does not explain this phenomenon. The second inventor has not “stolen” anything from you, and does not propose to “steal” anything from you, and yet he is forbidden to exercise his liberty as he wishes (by making and selling the thing). He is having force initiated against him. A natural copyright theory must justify this use of force. It is unclear how it can do so. I have strongly criticized Ayn Rand’s answer to this phenomenon: an answer which simply amounts to “too bad!” I find this answer quite unsatisfactory. See Patents And Copyrights, reprinted in Capitalism: The Unknown Ideal 130 (1967).
Fair use is a common law concept whereby the courts allow a person to do what would technically constitute infringement of a copyright because the person is engaged in something that benefits the public, or does not really harm the owner of the copyright. Fair use can encompass the quotation of a book in something you write (like Rand’s use of passages from Nietzsche or Shakespeare in her writings), or the handing out of photocopies of an essay for class instruction, or even parodies that incorporate material from the original work without the “owner’s” consent. Fair use acts, as I’ve said, as a kind of “public easement” over a person’s intellectual property. See, e.g., Morton J. Horwitz, Conceptualizing The Right of Access to Technology, 79 Wash. L. Rev. 105, 115 (2004). But government has no legitimate authority to force a person to provide a public easement over his land. If intellectual property rights are a natural right, then the government has no right to declare a public “fair use” quasi-easement over intellectual property rights. The concept of fair use has always been based on the notion that copyright is not a natural right. So a natural right theory of copyright would have to explain this phenomenon. Defenders of natural copyright, however, have failed to do so.
Derivative works are similar to fair use, in that they are works that incorporate the first, but add to it something of the artist’s own creativity, to make a new work. Some of them are very blatant. Others much less so. In fact, a strong argument exists that virtually all creative acts are “derivative” in some way, since it is hard to imagine a work truly springing fully formed from the head of the artist in the same way that Athena sprang from the head of Zeus. (See? I just “derived” from Hesiod.) Although it might not, legally speaking, constitute a “derivative work,” I would argue that, at least as far as necessary for this discussion, the Hollies’ great song “Long Cool Woman” is derivative of the work of John Fogerty. Fogerty invented “swamp rock,” of which “Long Cool Woman” is a type, and any novice listener might think that “Long Cool Woman” is by Creedence Clearwater Revival; Fogerty himself has often commented on the similarities. A natural copyright argument would have to explain whether, why, and to what extent, Fogerty could forbid the Hollies from making and singing their song. They have obviously copied something about his work—something we might call the “gist” or the “vibe” of the work. A natural copyright theory could very well forbid this on the ground that Fogerty, having created swamp rock, owns the genre. But owning the genre is a very dangerous problem. After all, it would be very sad, I think, had Yevgeny Zamyatin been able to forbid Ayn Rand from publishing Anthem, or for them both to have forbidden Orwell from publishing 1984.
Adam Mossoff argues in favor of a natural copyright theory in Is Copyright Property? 42 San Diego L. Rev. 29 (2005) and What Is Property? Putting The Pieces Back Together, 45 Ariz. L. Rev. 371, 413-27 (2003). Since the second article is far better, I’ll start with it.
In What is Property, Mossoff contends that present-day theorists of property should not focus so much on the right to exclude as if it were the essence of all property. He argues for a conception of property that relies on the moral desert that arises from a creator’s effort. The concept of property, he writes, “represents an integrated unity of the exclusive right to acquire, use and dispose of one’s things.” Id. at 372. In doing so, Mossoff recognizes that property can be divided into the natural right of a person to the fruits of his labor (which Mossoff calls the “use-right”), and the social right to exclude. Early philosophers of property rights had difficulty connecting these two, and this difficulty was exacerbated by the Portugese government’s claim to ownership of the whole sea, on the grounds that they had exploited the sea through their sailing. Id. at 384. These thinkers, including Grotius and Pufendorf, contended that while the right to the fruits of one’s labor was a natural right, the right to exclusivity was based on tacit consent: they “believe[d] that property is predicated upon two conditions: (i) an individual act of possession (i.e., use or occupation), and (ii) an agreement among individuals to recognize and respect these rights in a society…. [T]he central difficulty with Grotius’s and Pufendorf’s account [is] their reliance upon consent as a predicate for [the exclusivity of] property rights.” Id. at 385.
Mossoff contends that John Locke solved “the quandary of how to derive property from common use-rights without the device of consent.” Id. at 386. This solution is in Locke’s labor theory of property: once a person exercises a use-right to draw a resource out of nature and employ it, he mixes his unique liberty with that thing, so that to deprive him of that thing would be to deprive him of the use-right, which is a pre-political, natural right:
[A]n individual exclusively owns his life and his labor…and that labor extends this moral ownership over things appropriated from the commons. Accordingly, property is created in the world through the labor made possible by one’s life and liberty—a dominion characterized by the exclusive moral claim to one’s own life and liberty that is now extended over external objects in the world…. It is labor that transforms the inclusive claim-rights in the state of nature into exclusive property rights, which is one of the primary rights civil society is formed to protect.
Id. at 388-89.
So far, so good. But this rationale cannot apply to intellectual property, due to its peculiar, non-exclusive nature. Simply stating that “[t]he exclusive moral possession of one’s life, limbs and liberty that one extends over things in the world when one engages in labor is…the fountainhead of property,” id. at 389, will not explain the exclusive claim to a kind of property that, once “taken” still remains in the “possession” of the complaining party.*
The fact that non-exclusivity represents a serious problem for Mossoff’s theory is made clear by the fact that he fails to address again the Portugese claim to the sea. In the Lockean view, a person’s labor is necessary and sufficient for a right to his use and enjoyment of the fruits of his labor, but is only necessary, and not sufficient, to justify legal exclusivity. Legal exclusivity is justified by both the labor principle and the principle of disseisin—that is, by the fact that depriving a person of his property is to deprive him of his liberty. But this last statement is not true of intellectual property. In other words, while labor is the fountainhead of property, it alone cannot justify exclusivity. If it did, then the Portugese claim to own the sea would have been justified.
Mossoff contends that “[t]he ocean is incapable of being the subject of dominion because it is incapable of being occupied, which means that it is incapable of an exclusive possession that would give rise to a right to property. Without the ability to exclude others physically…there can be no right to property. The right to property is analytically predicated upon the right to exclude,” id. at 385 (emphasis added), but he appears to be summing up the thoughts of others in this passage. If he does agree with it, it is unclear why the same should not apply to intellectual property. Mossoff, ironically, has given us a perfect image of the problem with regard to exclusivity in intellectual property—and seems to have defended my side of the argument—when he rejects the Portugese claim to own the whole ocean. They may have satisfied the first element of property—the moral right to use and enjoy that property—but they have not satisfied the second element—the right to exclude others. Mossoff himself contends that “the right to exclude is only a formal requirement of how the acquisition, use, and disposition of property occurs vis-a-vis other people in society,” id. at 394—that is to say, the right to exclude is just an appendage to the moral right of use and enjoyment, and not a primary notion in the theory of property; Robinson Crusoe has the right to use and enjoyment, but the right to exclude only arises once Friday shows up, because while Crusoe is alone, he has nobody to exclude. I contend that this argument falls in my direction, though. If the property at issue cannot be “taken” from its creator—as intellectual property cannot—then there must be some other justification for initiating force against people who imitate the creator. To think of exclusivity as an inherent part of property would be context-dropping.
In Is Copyright Property? Mossoff contends that the nonexclusivity issue is a red herring because “the difference between the two types of property rights is not a difference in kind, but only one of degree. As with chattels or fishing rights, when one is faced with a different context, one must define one’s property rules accordingly.” 42 San Diego L. Rev. at 39-40. This is very unsatisfactory. In natural rights theory, one does not “define property rules,” one finds them. That is to say, society is not free to create rules which deprive people of their liberty (for example, society may not create slavery, which would be a “property” right on one person’s part to the labor of another); if copyright is a natural right, doctrines such as “fair use” would constitute positive violations of natural rights by government fiat, which would never be tolerated in the realm of “fishing rights” or any other kind of tangible rights, no matter what the context. If a person has an exclusive right to fish, he has the right to forbid even the most incidental trespass on that right, just as Shylock has the right to demand his pound of flesh, even if in doing so he rejects double compensation for the breach of his contract. The grounds on which “fair use” are justified would seem also to require the curtailment of any and all intellectual property rules, if we are to avoid “stealing the concept.” It is not that non-exclusivity is just a happenstance that requires new property rules; it is that it fails to satisfy the basic, Lockean rationale for property rights, and actually positively corrodes them, as the example of the innocent simultaneous creator makes clear. Mossoff does not address this issue at all.
Thus while Mossoff has justified the creator’s right to the use and enjoyment of his creation, he has failed to satisfy the creator’s right to forbid others from simultaneously using it, since in their doing so, he is not disseised.
Some final points: again, I in no way mean to denigrate from the moral glory of creators, or to assert that they do not have the right to use and enjoy their creations. Nor do I suggest that my arguments against exclusivity should apply to anything other than intellectual property. I think it is very unfortunate that some defenders of natural copyright have used such rhetoric as “Marxist” when attacking those who criticize the theory of natural copyright. I am not a Marxist, and do not believe the state, or the people, or anyone, has a right to the creations of others. On the contrary, I think the concept of natural copyright is very dangerous to the free market, in that it proposes to forbid entrepreneurs from legitimate and praiseworthy uses of their liberty. The wealth they create is certainly their own. The ideas and expressions that they create, however, are a different matter due to the nature of the thing at issue. A is A. A thing has a nature. Intellectual property is nonexclusive, and to treat it as if it were exclusive is to violate this basic premise.
Also, I do not mean to say that Adam Mossoff’s work is bad. His article What Is Property is—with the exception of the passages on intellectual property—first rate, and I found it immensely instructive.
Finally, I am not saying that intellectual property is necessarily a bad thing. Patents and copyrights may very well be a brilliant idea. But they must be understood for what they are—purely statutory creations intended to solve what was seen as a market failure. They are not natural rights. Also, a creator may wish to sell his material with a licensing agreement forbidding the copying of his material. This is a perfectly legitimate use of his natural right to contract, and I am not criticizing it. I am simply saying that when a creator comes up with a new thing or a new process, he has no natural right to forbid an onlooker from copying his new thing or new process.
*-As Jacob Bronowski contends in The Identity of Man, a person does not learn by simply recording the output of another brain in his own; he recreates the idea in his own brain—an act of almost as much creativity and moral glory as the original creator.
