January 25, 2004

Écrasez l'infâme!

Posted by Curt at 04:29 PM in Art | TrackBack

I suspect that most adolescents of my age (19) have found themselves, to a greater or lesser degree, in a state of tension with intellectual property regulation, especially probably in the realms of filesharing and academic paper documentation. Likewise, I have found myself annoyed and hindered over the years by these restrictions, but without ever questioning the larger principle of intellectual property. Recently, however, I have come to a position of more and more general criticism of the very concept of intellectual property and its manifestations. At least the injunctions in schools and universities against plaigarism and associated trespasses have justification in the necessity of evaluating the particular knowledge and abilities of students themselves, which hence makes it necessary that the work under evaluation is clearly theirs. However, justification on the grounds of the sanctity of intellectual property seems to me a dubious proposition, in the publishing and recording industries just as much as in academia. The Internet, of course, will bring about a sea-change in this culture in any event, whether we find an intellectual justification for it or not. But I don’t think that a justification is terribly difficult to formulate, for the very notion of intellectual property is counter-intuitive and even somewhat perverse at best.

Nor is such a notion of very long standing. It is probably attributable to the hypertrophic venting of the Romantic poets and their overly-cultivated and overheated mythology of the solitary creator. But it seems to me that the process of creation is almost never effectively sui generis; someone, I think it might have been T.S. Eliot, once said that true originality in writing consists of the combining of a likely and an unlikely source. Perhaps, then, methods of creation like hip-hop sampling are only differences from more traditional modes of artistic creation of degree and obviousness rather than of kind. And in any case, regardless of how creators come about their inspiration, the mere fact of their authorship does not mean eo ipso that their creation remains their own property after its formulation and publication (that is, being made public). Thomas Jefferson, one of the formulators of American law, said that ”If nature has made any one thing less susceptible than all others of exclusive property it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone.” Clearly Jefferson recognized something in the non-materiality of ideas that made them less amenable to exclusive possession than objects, not only in their greater exchangeability but also in the simple fact that they are not exclusive, i.e. to take an idea from someone is not to deprive that person of the idea or of the use of it.

Of course this is not an entirely ingenuous statement, because many creators rely on the exclusive control of their ideas for their living and their financial well-being, so to take an idea from someone in this situation may not be to divest them of the idea itself, but it does rob them of some of the benefits they derive from it. Even Jefferson ultimately supported a very limited form of intellectual property rights in the knowledge that some people do create with an eye towards the material benefit that will result from it, and so must have this sort of incentive in order to create. However, it should also be noted that Jefferson did not himself accept the legitimacy of this desire, and conceived of intellectual property rights as simply a means to coax out inventions and creations, at which point the needs and desires of their creators become irrelevant.

Part of the problem, and the explanation for this tension of concepts in the modern age, may be that creators today are more dependent for their living on their creations than creators in earlier eras. If (a conditional hypothesis) the majority of poets, scientists, engineers, artists, etc. in past ages served as retainers in aristocratic employ, their salary would not have depended on the sale of the products of their invention. Hence intellectual property would not have been a pregmatic issue but primarily one of principle. And it seems to me that in such a situation, in which the material well-being of the creator is not affected, that the only real defence of intellectual property is an appeal to the well-being of the creator’s ego, which, while understandably of importance to the creator, does not seem to me to be a particularly worthy matter for the concern of anyone else.

It should be clear that I do not regard ideas as objects, and hence that I do not regard possession of one’s ideas as a fundamental right. It can only be justified on utilitarian grounds in my opinion, and even this rings hollow in many cases today. It seems to me that the illegitimate pretensions to ownership of their ideas on the part of creators should only be humored when they encourage innovation. This is why Jefferson tolerated intellectual property law, regarding it as the price of innovation, and the grounds on which opposition to price caps and patent infringement of the pharmaceutical industry are generally justified. But clearly today intellectual property rights very often impede rather than encourage innovation. For it is certain that while taking an idea from someone does not deny them access to the idea, copyright and patent law definitely do.

In short, while innovation clearly depends to a large extent on economic incentive, intellectual property law, in addition to being illegitimate, is today very often manifestly ineffective in this regard, and some new form of creative compensation is necessary. Perhaps the New York Times, in this recent article, is attempting to stir up such a change. However, the NYT goes at it with its usual cause-destroying machinery: profiles of activist, irritatingly named non-profit organizations, interviews with socialist, terminally abstracted professors, and the chilling and deflating revelation that I share an opinion with “a protest movement…made up of lawyers, scholars and activists,” who are made to appear to be the principal supporters of this view, which is almost enough to make me disavow my afore-mentioned opinions. I also resent how these anti-capitalist activists (the name they apply to the movement they claim to represent, “Copy Left,” should give some insight into their political and social philosophy, as well as their taste for precarious puns) tend to portray intellectual property law as yet another evil intrusion of capitalism and money-making into the rarified regions where English majors and Robert Owenists prefer to dwell in peace. But I don’t oppose these laws because money is being made from intellectual productions, but rather because money is being lost, and not only money but works of great value and beauty for the world, on the basis of a stupid and craven deference to spurious moral claims. However, in the midst of drawing a to say the least questionable parallel between the anti-copyrightists and the early environmental movement, one of aforementioned theorizing pedants offers perhaps the most suitable coda to the issue:

”The environmentalists helped us to see the world differently, to see that there was such a thing as ‘the environment’ rather than just my pond, your forest, his canal. We need to do the same thing in the information environment. We have to ‘invent’ the public domain before we can save it.”


" We have to ‘invent’ the public domain before we can save it.”

Tragedy of the Commons, anyone?

Posted by: shonk at January 25, 2004 11:20 PM

That is a valid, though debatable, point with respect to the physical environment, but is not applicable to the intellectual environment because ideas, not being goods in the conventional sense, are not expendible, and hence the issue of consumption never really comes up. As I said before, the only element of mutually exclusive utility that I can identify in connexion with ideas is the credit due for their origins. The point which you have identified as a possible flaw in environmentalist theory is the point at which the parallel between the physical and intellectual environments breaks down, which I acknowledged in my post. Nevertheless, the theory still bears quotation in conceiving of the public sphere of ideas, even if it is ultimately a flawed conception of that which it was originally intended to describe, the physical environment

Posted by: Curt at January 26, 2004 04:07 PM

Ideas are not finite.

Posted by: mock at January 26, 2004 04:34 PM

It seems to me that those who favor IP also fear the death of creativity and ingenuity. Such claims are gratuitous as well as melodramatic, and likely stem from a monetary view of art. Art is transcendent and incommensurable. The regulation of art as a good ultimately serves only as a debaser; thankfully, we know it is doomed to fail. There will always exist those who crave the superlative therapy of art, be they artist or patron, and it is this that ultimately drives creation.

Posted by: mock at January 26, 2004 05:53 PM