Via LawMeme, an essay by Adam Mossoff arguing (against Lessig and other Creative Commons proponents) that copyright is naturally a property right.
The essay is fascinating, well-argued, informative, and wrong.
The key issue is that intellectual property, unlike tangible property, is not exclusive. If I decide to park my car in your garage, I’m preventing you from using it. We can’t both be parked in the same garage at the same time. (Assuming it’s a one-car garage.) On the other hand, if you own a CD, and I burn a copy of it, there’s nothing to prevent us from both listening to the same music at the same time.
Now, there’s good reason to give creators (authors, musicians, etc.) limited copyright protection: without it, it would be difficult for them to make a living, and thus we’d all be worse off because there’d be less creative productions in the world. But this monopoly is a privilege, given for practical reasons, and not an inherent right.
And indeed, that’s exactly what the Constitution says:
If copyright were a property right, it would be indefinite. The only justification for restricting it to “limited Times” is the fact that it is a privilege, not a right.
Mossoff tries a couple of lines of attack against this argument. First, he suggests that property needn’t be exclusive:
This, however, is utterly irrelevant. The rationale for fish and game rights is that fish and game–despite being self-reproducing–are still limited. You can’t photocopy a fish, or send a fish by e-mail. Comparing fishing rights to copyrights is like comparing, well, salmon to SMTP.
Mossoff’s second argument is the Lockean proposition that one owns one’s creative work because it is the fruit of one’s labor:
But this argument begs the question, what does it mean to own something intangible? There is no inherent definition, precisely because of the non-exclusionary nature of intangible property.
I agree with Mossoff that fairness–and even the rights to enjoy the fruits of one’s labor–dictates that we find some way of ensuring that artists are compensated for their work. Copyright, understood as a limited and regulatable grant of privilege, is an excellent means to that end. But an inherent property right in intangible creations is simply a meaningless–but dangerous–contradiction.
(P.S. If anyone reading this is not familiar with Creative Commons, copyleft, and the like, this NYT Magazine article is an excellent intro.)
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This is not the site of journalist and author Daniel Glick. His website is at danielglick.net
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Sick Transit: A directionless train of thought. Sic transit cogitationes Danis.
February 2nd, 2004 at 10:21 am
I appreciate your critique, and you’re right: my essay does not by itself try to prove that property is constituted by the rights to acquire, use or dispose of something, of which exclusion is a derivative right that refers back to these more fundamental possessory rights. Unfortunately, I could not address the larger topic of the theoretical justification for property qua moral and legal entitlement in the 15 minutes that I had at the conference to reply to Richard Epstein’s paper. Also, the conference was dedicated to the issue of digital copyright, which restricted my remarks even further.
I do engage your claims about the nature of property more directly in a piece that I published in the Arizona Law Review a year ago, called: “What is Property? Putting the Pieces Back Together.” I posted this to SSRN about 6 months ago, and thus If you search my name there you’ll find it.
I would be very interested in hearing what you have to say about my larger property article, and I do talk about IP rights there–trademarks, trade secrets, and copyright. I had to leave patents for another day because this was far too big of a topic to address in a short section of the paper.
Again, thanks for the thoughtful comments. I always love a good intellectual debate!