Re: "Against Intellectual Property"

Linda Gruber <linda[_at_]novelart.com> wrote:

>If I labor to build a car instead of a piece of art, the government
>would not take it from me or my heirs according to some arbitrary
>term limit. Why isn't everything I create from my own imagination
>and skill my property? It should be mine forever unless I choose
>to sell it. However, the government chose to take my creations for
>the public good and pay my heirs zip for the fair market value of
>the licensing fees that are lost forever upon the forced expiration
>of the private property rights. They don't do that to others.

Hmmm, I have problems with this analogy, basically because I think there are problems in general with analogising real or personal property with intellectual property.

Firstly the term "intellectual *property*" itself is misleading. Other words like copy*right* are more accurate.

Secondly, there are various inconsistencies between the two, they do not sit comfortably together, and because of this, it is wrong to compare them. For example, if you build a car, and you sell it, you sell it once. You don't sell that particular car over and over again. You build many cars (all of which you have an individual property right separate from all the others) and sell them.

With copyright, you can sell the *copyright* by assignment (which is exactly like selling the car) or you can sell copies of the work over and over again with out losing the right (which is completely different from selling the car).

This is because when talking about copyright works in general, there is a distinction between the work itself and the copyright in it. The thing itself has personal property rights wrapped up in the physical embodiment of the work, whereas copyright is something which cannot be attached to one particular physical object. (see: Patterson, L. R. and S. W. Lindberg (1991). The Nature of Copyright: a law of users rights. London, University of Georgia Press for a more detailed discussion of the distinction between the work and the copyright).

Again, this provides another distinction, because whereas rights in personal property are inseperably tied to the 'thing' itself, copyright exists independently of any one particular physical work.

The limited term does not take away the piece of art itself, which still belongs to you because of the law of personal property, but it allows others to copy it, and adapt it and build on it. This is the public good that the limited term attempts to achieve.

Also, when building a car, you don't build it by taking body parts from cars previously built by others, whereas the process of creating copyright works naturally involves building on the work of others.

I'm afraid that IMHO perpetual copyrights are a bit like working in a car factory, and not only being paid a wage while you are there, but also after you've retired, and then for your heirs being paid that same wage after your death. However you feel creatively about a copyright work, it is nevertheless an asset, and treated as such by society.

Ewan Kirk
Law School
Southampton Institute, UK. Received on Mon Aug 07 2000 - 12:11:17 GMT