Examining Intellectual Property: can we own ideas?


A longstanding controversy about the notion of copyright has been hovering over regulations and laws since the beginning of the eighteenth century. As forms of entrepreneurship in publishing and readerships developed and started to grow in success, the aspect of copyright became essential not only to the individual authors' intellectual property but also to their economic security and creative development.

Copyright is a complex issue that has undergone many changes over the past three centuries, and today has by no means the same status or purpose as it initially did. Different countries have enacted different laws, and copyright has been extended from learned books to literary works, plays, poems, maps, paintings, photographs, lyrics of songs, musical melodies, films, computer programs and even medicine. A milestone in the international acceptance of copyright was the so-called “Berne Convention for the Protection of Literary and Artistic Works” of 1886.

The main purpose of copyright is to protect intellectual property. Historically, the philosophy of "property", "property right'' and "copyright" has significantly been influenced by the views which philosophers had about political and social issues. In the wake of the Industrial Revolution and the exploitation by factory owners of working class people, socialist and communist thinkers argued that property is to be seen as something collective rather than individual. Currently it seems to be the capitalist notion which has won, closely connecting property to individuals while seeing property right as an individual human right.

Before making any assumptions about intellectual property, let us look at the various ways it may be defined in the first place. At what point during its creation does a cultural product become someone’s property? For example, the copyright for the ever-so-cheery "Happy Birthday" song was purchased in 1990 by Warner Chappell, making it possible for them to claim it as their own, intellectual property. Does this imply that every day, the many thousands of people singing "Happy Birthday" are infringing on someone else's intellectual property rights by taking possession of it without any acknowledgement of its origin or ownership? 

How is intellectual property created? The process of creating any cultural product necessitates the use of already defined and explored areas of craft and expertise, such as the functions of a piano in order to create a musical piece, or formulas in mathematics on which you base your investigations. Accepting this premise, each time a new piece of so-called "intellectual property’' is created, some other previous intellectual property is being used without recognition; hence according to the notion of copyright, does there exist an embedded violation of said copyright?

In Stephan Kinsella's Against Intellectual Property, a similar dilemma is illustrated: “Imagine a man who decides to build a log cabin on an open field, near his crops. To be sure, this is a good idea, and others notice it. They naturally imitate [him], and they start building their own cabins. But the first man to invent a house, according to copyright laws, would have a right to prevent others from building houses on their own land, with their own logs, or to charge them a fee if they do build houses. It is plain that the innovator in these examples becomes a partial owner of the tangible property (e.g., land and logs) of others, due not to first occupation and use of that property (for it is already owned), but due to his coming up with an idea. Clearly, this rule flies in the face of the    first-user homesteading rule,    arbitrarily and groundlessly overriding the very homesteading rule that is at the foundation of all property rights." So, does intellectual property refer to the means with which it has been carried out (i.e. logs, land, keyboards, formulas); or the initial idea that lead to the result?

Recently, the issues of intellectual property and copyright have become increasingly problematic because of new means of reproduction, in particular through the world wide web. Initially, as indicated by the very title of the first British copyright Act of 1709, the copyright notion was based on economic considerations, to enable authors of printed books to pursue their writing professionally. Until this very day, said economic aspects have remained a major part of the foundations of copyright; even though it seems inconsistent and messy to prioritize commercial angles which tend to overrule the importance of creative development.

According to the 17th century Scottish philosopher John Locke, individuals own themselves and therefore have the right to claim their own labour as intellectual property. By investing their labour into generating tangible results, people become owners of their works and, in the case of authors, they acquire a natural right of ownership of their books. Later this notion was forcefully enunciated in the form of copyright as an absolute property right and extended from books to many other products of human creativity.

Especially today, the morality of ownership - or rather the immorality of plagiarism - is emphasized and people who steal the creative work of others are shamed and punished in a variety of ways. It amazes many of us today that in the eighteenth and early-nineteenth century many popular, widely read books commonly included illustrations and large sections of text that were copied without acknowledgement from original sources. Today, by contrast, theft of intellectual property is punished by exposure in the media or even job or education loss. A 1996 contribution by Esther Dyson on this issue states: “I think copyright is moral, proper. I think a creator has the right to control the disposition of his or her works - I actually believe that the financial issue is less important than the integrity of the work, the attribution, that kind of stuff." It is however a heavy accusation to indict someone of copyright infringement when theoretically already existing intellectual property is being borrowed in order to create new intellectual property.

We never have been able or willing to give a consistent definition to intellectual property. More profitable forms of cultural production are given stricter copyright laws than others. The issue of traditional knowledge and creativity presents us with some problems as well. Ever since the colonization of native nations by European settlers, has said native knowledge been unashamedly stolen and freely reproduced "at home" as European property. The same has taken place - and even today is still taking place - with respect to many native forms of art, music and other foreign property. White­ western artists have become famous for copying African motives while gaining significant economic profit. If copyright is an inalienable human property right, how can it be that a large majority of people do not realize that some of our presumed intellectual properties are in fact major pillages of obviously foreign, "native culture" property? How is it that we legally applaud and celebrate these white Western artists?

A further philosophically troubling phenomenon, fully and widely accepted among us, is the practice of ghost writing. Many books purportedly written by famous and powerful people,  especially politicians, are in reality not written by them but by hired ghost writers. The anonymous ghost writer is likely to get paid for his or her work; however if intellectual copyright is based on authorship, how can it be arbitrarily transferred to another person? If authorship is inalienable, it cannot be taken away from the person who actually produced the work. If copyright is a human right, it is not for sale. Do we regard it as acceptable and legally justifiable when persons are forced to sell themselves into the modern slave trade? The "buyer" of slave labour is surely be regarded as reprehensible and unjustified in their actions. Our outrage over the treatment of workers from “developing” countries in households of “wealthy” countries under conditions of wage slavery (a Marxist term), proves this point.

It can be argued that copyright protects only the forms in which ideas are expressed and materially fixated, not the ideas themselves. But in many instances the most important part of creative work is the development of ideas. It is impractical if not impossible to protect the ownership of ideas, especially if these have not been uttered or otherwise expressed. But philosophically - once again - ideas may be intrinsically copyrighted. One of the greatest mathematicians of all time, the German mathematician Carl Friedrich Gauss, refused to acknowledge the priority of colleagues who published new ideas when he himself had developed the same ideas long before (without publishing them, however). Gauss was accused by some of plagiarism of a kind. Posthumously, it was discovered from a study of Gauss' unpublished notes that he indeed had developed the mathematical ideas long before others published them, and now we credit Gauss who had the ideas, not his colleagues who were the first to publish these. It would be philosophically sound practice if we were to extend a similar copyright of ideas practice to others and other instances. The notion of copyright, as part of the more general notion of intellectual property, was and today remains controversial    and dodgy. Political, economic, pragmatic and philosophical considerations pull in different directions. A philosophically sound approach would support a re-thinking of the notion that collective cultural products can be copyrighted in the first place. 


Bec Wonders