Wednesday, January 18, 2012

On intellectual property rights.

More on the piracy issue. It's often argued that intellectual property has some sort of moral dimension. It's just wrong to infringe on intellectual property rights. I don't think this case is really very good.

Intellectual property rights get their moral weight -- or, at least, their apparent moral weight -- through the (mis) application of two separate principles: the principle of authorship and the principle of ownership.

By the principle of authorship I mean the idea that being an author is at least considered to be morally worthy. That is, the status as an author brings with it certain rights, including dissemination and control of dissemination, as well as certain duties, including special duties of sincerity in dealing with others. (To be complete, I should also add the apparent moral worthiness of the character of an author; but, for purposes here, I will bracket virtue considerations.)

By the principle of ownership, I mean the idea that owning something conveys moral worth on the owner, and reduces or eliminates the worth of the owned. Slavery is an obvious example, but treating one's children as property rather than responsibility would nicely illustrate the point as well.

Ownership as a moral endeavour is surprisingly pervasive in modern societies, including our own. John Locke, the source of many of our ideas on government, famously defines the close relationship we have to ourselves, his ground for all basic moral rights, in terms of our being owned by god, then having that ownership transferred to ourselves. The point is also nicely illustrated by Terry Pratchett's golems in his novel Feet of Clay. The golems only become liberated and self-governing people through being bought by other golems, and being given themselves (by receiving a receipt). One could also draw attention to the different moral evaluations of renters and owners, or debtors and creditors. To possess property, speaking generally, is seen as more morally worthy than not.

These two principles generate the idea of intellectual property and its attendant rights by drawing first from the moral weight of authorship -- the author of a work has superior moral status -- and then explaining that with the principle of ownership -- the author's elevated status is due to his or her owning the created work.

I'm generally willing to grant the principle of authorship. There is something worthy in the act of creation, and that does deserve some sort of response: the right to be identified as the author, and the duty to be responsible for the content of the work; the right to (within limits) control the dissemination of the work, and the duty to not withhold it unreasonably or punitively; and so on.

It's the principle of ownership I'm iffy about. Go back to Locke for a minute, and grant that I do have some special relationship with myself that differs importantly from that you have to me. Is it really ownership? Am I to myself as I am to my pen? What if my self breaks? Or I want to trade my self for a better one? These, and related, questions work well for pens, but badly for selves; and I suspect the ownership relation is to blame. (Locke apologists take note: Locke himself uses this relation to ground a full theory of property, so it is literal not metaphorical ownership at stake).

Or, consider the creditor and the debtor. The creditor owns and the debtor owes, but is this always to the debtor's moral detriment? After all, we do occasionally see the debtor as innocent and the creditor as predatory, or the debtor as needy and the creditor exploitative -- all of which are to the creditor's moral disfavour.

Overall, I'm not sure why should treat the products of one's intellect as equivalent to actual products, which are ownable. The principle of ownership is dubious as a general claim, and, as argued in an earlier post (here), the analogy between intellectual and other property is poor at best.

Insofar as law is to follow ethics, it seems that the case for any laws on strictly intellectual property is pathetically weak.

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