Sunday, February 06, 2005

Intellectual Property is a Moral Right-Part I

From grannyhelen

A note to the kind readers of faithforward: please hear me out on this one, and then flame me if you will. I know this is a very contentious topic with passionate emotions on all sides. My intention here is to lay out the historical and philosophical argument for intellectual property being considered a moral right and part of the natural law. I hope that any feedback I receive from this diary is as measured in its language as I have attempted to be here.

I've participated in only a few of the intellectual property conversations on the blogosphere. I don't consider myself to be uninformed on this topic: indeed, I spent the last five years of my professional life as a cog in the bureaucracy of licensing and rights clearance (sure, I could tell you who I worked for, but then I'd have to kill you. Just joking. Moving on...).

The reason why I've been reticent to diary on this subject before is the level of acrimony that arises when this issue is brought up. Folks on the Lessig side of the debate generally have a line of attack that reads something like this:

-The founding fathers hated copyright and therefore would hate our current system of intellectual property.

-You cannot own an idea, therefore there is no such thing as intellectual property.

-You cannot own an idea; therefore you are not entitled to make a living on intellectual property rights.

-The government grants limited monopolies to rights holders, therefore they are not vested in their own ideas and therefore rights should not descend or be held longer than 20 years with a 20 year extension.

And so on and so on. Not only am I familiar with Lessig and these arguments, there are areas that I strongly agree with Lessig and his followers on. Intellectual property and copyrights in particular are too skewed to favor corporate interests. The public domain has been eroded and needs protection - in my fantasy world of intellectual property freedom, through federal legislation instead of case law, which would protect the general public from corporations and right holders over-reaching and being too litigious in protecting their rights. I think Lessig's concept of the Creative Commons is an innovative way to address the needs of the online community to share information quickly and easily without fear of attorneys sending individual users cease-and-desist letters.

Where I part company with the Lessig crowd is the insistence of inherently vesting the rights of created works not in the individual but in the government.

Huh? Say...what?! (eyes glazing over)

Yep, sentences like that are the reason why intellectual property discussions are frustrating to have. Most of the time it sounds like people are just talking gibberish and making big bucks because they're speaking a language you can't understand and all you want to do is download some Billy Bragg songs you lost because your former roommate used your CD as a beer coaster. So let's start with some definitions. These come to you courtesy of the good folks at the US Department of State. The definitions I've picked out refer specifically to the different areas of intellectual property law, specifically copyright, patent, right of publicity and trademark. Also tossed in their official definition of what intellectual property and the public domain are, just so we're all playing off the same page of music, and moral rights, as I brought these up in the title of this diary:

COPYRIGHT [copyright]. An exclusive right conferred by the government on the creator of a work to exclude others from reproducing it, adapting it, distributing it to the public, performing it in public, or displaying it in public. Copyright does not protect an abstract idea; it protects only the concrete expression of an idea. To be valid, a copyrighted work must have originality and some modicum of creativity.

INTELLECTUAL PROPERTY [patent-trademark-unfair competition-copyright-trade secret-moral rights]. Creative ideas and expressions of the human mind that have commercial value and receive the legal protection of a property right. The major legal mechanisms for protecting intellectual property rights are copyrights, patents, and trademarks. Intellectual property rights enable owners to select who may access and use their property and to protect it from unauthorized use.

MORAL RIGHTS [copyright-author's rights]. Certain rights of authors, beyond those recognized in copyright law, as recognized by the legal systems of some European and other countries. Moral rights generally fall into three categories: the right of an author to receive credit as the author of a work, to prevent others from falsely being named author, and to prevent use of his or her name for works he or she did not create; the right of an author to prevent mutilation of a work; and the right of an author to withdraw a work from distribution if it no longer represents his or her views.

PATENT [patent]. A grant by the federal government to an inventor of the right to exclude others from making, using, or selling his or her invention. There are three kinds of patents in the United States: a utility patent on the functional aspects of products and processes; a design patent on the ornamental design of useful objects; and a plant patent on a new variety of a living plant. Patents do not protect ideas, only structures and methods that apply technological concepts. Each type of patent confers the right to exclude others from a precisely defined scope of technology, industrial design, or plant variety. In return for the right to exclude, an inventor must fully disclose the details of the invention to the public so that others can understand it and use it to further develop the technology. Once the patent expires, the public is entitled to make and use the invention and is entitled to a full and complete disclosure of how to do so.

PUBLIC DOMAIN [general intellectual property]. The status of an invention, creative work, commercial symbol, or any other creation that is not protected by some form of intellectual property. Items that have been determined to be in the public domain are available for copying and use by anyone. The copying of such items is not only tolerated but encouraged as part of the competitive process. (See COPYING, INTELLECTUAL PROPERTY.)

RIGHT OF PUBLICITY [general intellectual property]. The inherent right of every human being to control the commercial use of his or her identity.

TRADEMARK [trademark]. 1. A word, slogan, design, picture, or other symbol used to identify and distinguish goods. 2. Any identifying symbol, including a word, design, or shape of a product or container, that qualifies for legal status as a trademark, service mark, collective mark, certification mark, trade name, or trade dress. Trademarks identify one seller's goods and distinguish them from goods sold by others. They signify that all goods bearing the mark come from or are controlled by a single source and are of an equal level of quality. And they advertise, promote, and generally assist in selling goods. A trademark is infringed by another if the second use causes confusion of source, affiliation, connection, or sponsorship.

Notice a theme running throughout some of these definitions: "concrete expression of an idea"; "creative ideas and expressions of the human mind that have commercial value"; "Patents do not protect ideas, only structures and methods that apply technological concepts"; "the inherent right of every human being to control the commercial use of his or her identity". Intellectual property law is concerned with the tangible creative expressions of the human mind - what we in the biz refer to as "created works" (in the instance of one's persona, the commercial value of that persona is considered a "created work"). And, if that created work has a commercial value - i.e., if more than you, your cat and your parents would pay good money to access it - then intellectual property law gets extremely concerned about protecting your created work. Intellectual property law is not concerned with protecting intangible ideas that do not exist in tangible form. Let me say this again so the point is clear: intellectual property law is not concerned with protecting ideas; it is only concerned with protecting the created works that arise from those ideas.

Why? Where does this come from?

Justin Hughes of Harvard University traces this mentality in intellectual property back to John Locke's concept of labor. Remember John Locke, the guy the founding fathers relied upon when formulating most of their concepts about democracy and government? In properly evaluating the intentions of the founding fathers in all sorts of areas, including intellectual property, I think it's fair to bring up John Locke.

As this is quickly shaping into a diary series, at this point I'll only briefly quote from Hughes' paper on Locke just so you can get a flavor of where he's coming from. I may devote a separate diary to full coverage of Locke, labor and intellectual property...depending on how this first one goes and how much stamina I have this next week. Be prepared...Hughes gets kinda wordy in places:

A society that believes ideas come to people as manna from heaven must look somewhere other than Locke to justify the establishment of intellectual property. The labor theory of property does not work if one subscribes to a pure "eureka" theory of ideas. Therefore, the initial question might be framed in two different ways. First, one would want to determine if society [*301] believes that the production of ideas requires labor. Second, one might want to know whether or not, regardless of society's beliefs, the production of ideas actually does require labor. This second question is the metaphysical one; in its shadow, society's belief may appear superficial. It is not. We are concerned with a justification of intellectual property, and social attitudes -- "understandings" as Justice Stewart said -- may be the only place to start...

...Of course, there are clear instances in which ideas seem to be the result of labor: the complete plans to a new suspension bridge, the stage set for a Broadway show, a scholar's finished dissertation involving extensive research, or an omnibus orchestration of some composer's concertos. The peripheral realms of intellectual property also provide examples in which the object immediately seems to be the product of tremendous work: news stories gathered and disseminated by wire services, or stock indexes calculated by a financial house. The images of Thomas Edison inventing the light bulb and George Washington Carver researching the peanut come to mind as examples of laborious idea-making. As society has moved toward more complicated technologies, the huge scales of activity required by most research, involving time, money, and expertise, have made the autonomous inventor a rarity. This trend strengthens the image of idea-making as labor akin to the mechanical labor that operates industrial assembly lines...

..The creativity we perceive in an intellectual product may be either in the core idea or in the core idea's execution. I suggest that when we readily can separate the two, execution always seems to involve labor, but it is not always clear that the creation of the idea involves labor. Ideas often seem to arrive like Athena -- suddenly they are here, full and complete. Like Zeus, we may have a headache in the process, but it is some unseen Minerva who puts in the labor.

Yet our inability to formulate any clear separation between idea and execution suggests that we should treat them as one. This apparent inability is reinforced by occasions in which the "execution" step begins before the idea. n96 In many fields, one has to do extensive research to create a necessary launching pad for a new idea. A graduate law student writing his doctoral paper made the telling comment, "If I had six more months to work on this paper, it would be an original idea." n97

...The case law of section 102 of the 1976 Copyright Act n102 has developed what has been called "the idea/expression dichotomy." n103 Under this doctrine, "expressions" are protected but the underlying "ideas" are not. n104 Not [*313] surprisingly, the courts have never developed a clear distinction between the two, relying instead on comparisons such as between the idea of a male nude and the expression of The David. n105 When one replicates a series of scenes a faire n106 to make a story, there is no copyright problem; n107 when one reproduces sets and production techniques, there is. Illicit copying is copying an expression, "the total concept and feel" of a work, n108 not just the idea.

Okay, I think that's enough Hughes for now. And you're probably saying to yourself - if you've gotten this far - well, heck, grannyhelen, what-in-the-h-e-double-toothpicks does all that mean?

Here's what Hughes is saying in a nutshell: intellectual property protects the fixed expression of an idea, not just the idea that's floating around in your head.  The fixed expression of the idea requires labor to see its full execution, and according to Locke's theory of labor all labor is a societal good and therefore the worker should receive adequate compensation for his labor. Therefore, the created work being a product of labor requires protection so that the person who created the work can receive adequate compensation for all the work he put into creating his created work in the first place.

Clear? No? Well, I'll be hanging out in this thread so let me know if you have questions. Or read the entire
for yourself (link above), as a brief excerpting hardly does it justice.

IF I continue this diary series, topics I'm thinking of covering next are: John Locke and the concept of labor in intellectual property; Thomas Paine, the natural rights of man and intellectual property; and the history of intellectual property in the colonies...or how the founding fathers learned to love corporate America.

But I'm not promising anything. Again, it all depends on how much stamina I have.

Hope you enjoyed this one and let me know if you want more.


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