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Copyright: The World of Tangibles
Does the Language/Philosophy of property fit within the world of intangibles such as knowledge and culture. Over-zealous copyright laws have an adverse effect on the freedoms of consumers and creators to make use of copyrighted material. By ascribing the characteristics of tangible property to intangible property, copyright laws are fomenting an “intellectual land grab”, as values of intangibles increase and authors seek maximum copyright protection for their works. For example, if someone eats my apple, then I cannot eat it. But if someone takes my idea, I still have it. The consumption of intellectual property is non-ruminant. If I tell you my idea, or if you use my idea, that does not mean that I am deprived of it. It is not like the taking of a tangible object where the original owner is completely deprived of its use and utility once it is taken. As stated in Dowling v. United States, “The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.” Copyright was invented after the advent of the printing press and with wider public literacy. As an effectual concept, its origins in Britain were from a reaction to printers' monopolies at the beginning of the 18th century. Charles II of England was concerned by the unfair copying of books and passed the Licensing Act of 1662, which established a register of licensed books and required a copy to be deposited with the Stationers Company. The Statute of Anne was the first ever real copyright act. It gave the author rights for a fixed period, after which the copyright expired. Copyright had traditionally been a publisher’s not an author’s right. Under the Stationers’ Company regulations, only members of the guild could hold the right of first publication. Authors had no explicitly recognized place in the scheme. The authors did not own their works, but the stationers acknowledged an obligation to obtain the author’s permission before publishing and to pay him for his work. Sir William Blackstone, in his commentaries on the Laws of England, defined property in absolutist terms as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the whole universe”. On the topic of reprints he staunchly argued an author “has clearly a right to dispose of that identical work as he pleases, and any attempt to take it from him, or vary the disposition he has made of it, is an invasion of his right of property” Blackstone interpreted the Lockean theory of property and applied it to the realm of intangibles. He argued for a copyright that extended beyond the author’s expression and encompassed the very “style” and “sentiments” held therein. To quote Locke: “….every Man has a Property in his own Person . . . The Labour of his Body and the Work of his hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property.” The theory of Blackstonian copyright was diluted by the House of Lords in Donaldson v. Becket [1774] and sixty years later by the US Supreme Court in Wheaton v. Peters. Donaldson v. Becket overturned the previously held idea of the common-law right of literary property and the principle of perpetual copyright. However, Blackstone’s propertarian approach to copyright has never entirely vacated copyright discourse. A huge media campaign has been launched which equates the unauthorized copying of music, movies and software to shop-lifting or stealing a car. A permission culture has been created through the inventive interpretation of laws. Ad-campaigns such as this try to socially demonise any activities, such as copying or the transformed use of art, since they occur outside the sphere of the permission culture. You cannot imbue intellectual property with the inalienable rights of physical property as it requires an intrinsic alteration in the intangible nature of the intellectual property and is irreconcilable with the utilitarian foundations of copyright. Transformed uses of copyright like mashing, sampling and appropriation art are incompatible with such a propertied approach, which compels users to pay arbitrary licensing fees which may be beyond their budgets. Internet users claim that copyright is policy, not property; it is different from tangible property and does not deserve the same moral or legal status typically afforded to our more traditional property entitlements. When property talk enters copyright discourse, it risks making transformed works an elitist form of creativity, with only people who can afford to pay the licencing fees having the privilege to use the works. The more parallels are drawn between the rights pertaining to physical property and those pertaining to intellectual property, the more opportunities there will be for oppressive monopolies to form on the backs of rights which were initially granted for the welfare of society. The idea behind Copyright was that the creator should be granted a bundle of rights so as to enjoy the fruits of his labor. It was to allow him to protect his unique expression of an idea and to benefit from it. However, the increasing trend to treat intellectual property as physical property necessarily straitjackets the creativity of users who wish to utilize an existing idea and interpret it for their own creations. References:
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