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Creation, innovation and regulation
CREATION, INNOVATION AND REGULATION: HOW CAN INTELLECTUAL PROPERTY RIGHTS BE PHILOSOPHICALLY JUSTIFIED?
BEN DE SOUSA (UPPER SIXTH)
Art was described by Peter H. Karlen in his 1986 article Worldmaking: Property Rights in Aesthetic Creations as:
Peter H. Karlen
This perceptive statement illustrates the relevance of the law of ‘intellectual property’, that protects the rights of creators to own their intellectual products, which, it could be argued (as by Hegel) are indeed reflections of their “inner nature”. In UK law, protection of these rights is achieved through the three main intellectual property protections of trademarks, patents and copyrights. On a legal level, the idea of intellectual property is well established, but it is worth considering its justifiability by assessing the philosophical arguments for and against it. I will therefore begin by expanding on the title of this article. What, exactly, is ‘intellectual property’? Under customary international law, as laid down in Article 27(2) of the Universal Declaration of Human Rights, it is established that “everyone
has the right to the protection of the moral and material interests resulting from any scientific, literary, or artistic production of which [they are] the
author,” which constitutes a right to owning ‘intellectual property’ in vaguely the same way a pen or a car could be owned. This definition also describes the philosophical concept of intellectual property, which differs only in its focus on more abstract (moral and often deontological) reasoning than the legal concept, which is also grounded in practical and economic arguments.
One of the most influential theories of intellectual property is the ‘Labour Theory,’ that is based in John Locke’s idea of natural property rights. In his Two Treatises of Government, Locke wrote how an individual, by their
“labour does, as it were, enclose [property] from the common."
Though Locke was discussing ownership of unowned tangible land, his underlying idea of exclusionary rights, that people deserve control of the results of their voluntary labour and resultant contribution to society, can be extrapolated and applied to intellectual labour and its products. Intellectual property, then, can be seen as a morally justifiable entitlement for creators. Locke did impose some restrictions upon his proclamation, such as the ‘non-waste requirement,’ which ensures that someone taking ownership of land is not claiming more property than they can utilise without waste. Another of Locke’s restrictions is described by Adam Moore in the Stanford Encyclopedia of Philosophy as the “enough and as good proviso,” which aims to prevent such acquisition of property from affecting fellow members of society negatively by taking away property they could have used to ‘flourish.’ Justin Hughes describes this provision as indicating that “each person can get as much as
he is willing to work for without creating meritocratic competition
against others,” and so aiming to maintain equality. However, these restrictions imposed by Locke on his theory of tangible property are less effective for the intangible concept of intellectual property, as it cannot normally be wasted like products of the land, and ownership of intellectual products cannot directly detract from others negatively by deprivation, as conceptually they are not finite.
Yet, Locke’s “enough and as good” provision, when applied to intellectual property, does link to a criticism of it. It can be argued that, as intellectual property is a ‘non-rivalrous’ form of property, in that the products it covers can be ‘consumed’ without prohibiting simultaneous ‘consumption’ by others (as illustrated by a flame of a candle, which can be divided without losing its own strength), it cannot be restricted justifiably. This argument, as written in the Stanford Encyclopedia of Philosophy, does assume that “maximal access and use should be permitted” if the property in question is non-rivalrous. This is the weak point of this critique, with Adam Moore and Kenneth Einar Himma pointing out the logical jump between establishing ‘non-rivalrousness’ and assuming a moral right to fully access such work exists. Examples of confidential information, like personal financial statements or information related to national security are cited as demonstrating how maximal access to intellectual work should not always be granted.
The assumption made in this criticism of intellectual property is similar to that made in the argument that information should be free, without intellectual property rights restraining it. A rather compelling case can be made for this, on the basis that intellectual property rights of ownership can lead to artwork and information that should be publicly accessible being monopolised for financial or other reasons. In many countries, such as France, museums can claim perpetual rights to a creator’s work with the aim of them acting as custodians to remove damaging reproductions. However, this has met with much criticism, especially if the museums are simultaneously promoting commercial reproductions of such artworks. Dr Grischka Petri told The Guardian that museums risk being seen as “hypocritical” for exercising their intellectual property rights in this way. Another instance where intellectual property has dubiously restricted public access is with the famous ‘Bullingdon Club photo’ of senior politicians like David Cameron and Boris Johnson whilst at Oxford University. The right to republish this picture, which arguably was in the
public interest considering the
prominence of its subjects, was revoked by the portrait photographers who held the copyright, leading news agencies to commission an oil painting of it to circumvent the intellectual property restrictions. This does indicate that intellectual property rights can be a negative, unjustifiable force, but I do not think this criticism is particularly damaging overall. Though it is essentially valid, it suggests a
need for better balance between the rights of creators and the good of an informed society, rather than the removal of the rights of creators
altogether, meaning that intellectual property rights remain justifiable.
A slightly different approach to justifying intellectual property is taken by G.W.F. Hegel, through his ‘Personality’ theory. Hegel argued that "every man has the right to turn his will upon a thing or make the thing an object of his will, that is to say, to set aside the mere thing and recreate it as his own". The implication of this is that control over our physical and
intellectual objects is essential for
defining our identity and creativity. By controlling and manipulating tangible and intangible objects, we allow our will to come into being in the world, which is roughly similar to Locke’s idea of a right to ownership proceeding from labour. Additionally, Hegel saw intellectual works as a reflection of the ‘personality’ of the creator, so uniquely entitling them to control the works to ensure the protection of reputation and dignity. This approach, summarised by the notion that an
intellectual product is an extension of
oneself and of one's personality, has also been adopted as a key idea of European intellectual property law.
However, Hegel’s theory has faced criticisms for being unnecessarily
reductionist in its conflation of
personality and creation, in that it intuitively appears to over-emphasise changes effected in the world rather than anything internal when assessing personality. It is also difficult to identify this personal element in more technological intellectual property, such as a specific code or machine. Despite this, if we focus on the idea of artistic intellectual property, it is significantly easier to find a reflection of personality, with many pieces of art, from painting to music, being shaped primarily by and easily identifiable with the artist, demonstrating a degree of
intuitive strength in Hegel’s theory, and justifying intellectual property at least in the realm of aesthetic creation.
Overall, though neither Locke nor Hegel’s justifications are flawless, they have considerable strengths that
have significantly influenced intellectual property legislation
across the world. Yet, many critiques of the restrictions imposed by intellectual property rights are still valid, and there are instances, considered above, where such a balance has not been achieved in accordance with philosophical justifications. However, these instances do not necessarily indicate that intellectual property rights are unsalvageable.
