Thursday, December 13, 2012

Why Intellectual Liberty?

This month has seen the release of my first scholarly book Intellectual Liberty: Natural Rights and Intellectual Property. In it I argue that natural rights thought, in particular as it appears in the work of the seventeenth century political theorist John Locke, has rather surprising consequences for intellectual property rights (IPR).

Intellectual property rights are the legal rights that restrain all of us from certain types of uses of other’s ideas, expressions and inventions. Two of the most common forms of intellectual property are patent – prohibiting copying other’s original inventions – and copyright – prohibiting copying other’s original expressions (and, sometimes, aspects of the ideas underneath those expressions). Copyright is my main focus in Intellectual Liberty.

In this blog entry, I thought I would reflect on the main ideas animating the work and discuss the book's key ideas in a user-friendly fashion.

Since it began, copyright has been steadily expanding. When it first appeared in legislative form in the seventeenth century, the ‘literary property’ held by authors of original works was very limited. A new writer did not get control over as many aspects of the work as they now do – for instance they usually could not control translations and sometimes even abridgements of their work. And the period of their control was much shorter – fourteen years was a common term, with extension to another fourteen years upon application.

Nowadays things are quite different. Copyright applies to translations, abridgements, sequels, prequels and works in the same fictional universe. In some cases it can cover information and facts – or words that are purported to convey facts. Scientology, for instance, has used copyright to actively suppress the communication of its esoteric texts, preventing the communications of ex-disciples wanting to warn others of the religion’s ultimately rather wacky secret beliefs. Increasingly, the exceptions carved into copyright – exceptions that allow for news-reporting, satire, critique and suchlike – are understood narrowly. Most of all, all these intellectual property rights last for much, much longer. In many countries, copyright terms run for life-plus-fifty-years, and this number may well continue to rise in the future.

Are these changes justified? Have we progressed toward better and more reasonable laws, or away from them? If we have moved away from just laws, then what is it that is morally wrong with these new laws?

One answer is that a good way of evaluating laws is to determine whether, on balance, they make us all happier and more prosperous. Most laws will tend to make some people happier and wealthier, and others less well off, as compared to other alternatives. It seems to be a sensible idea for us to have the rules that, when the sum total of happiness is calculated, make us all more – rather than less – happy. This way of evaluating policy is utilitarian. Copyright is often justified in this way – explicitly so in the US Constitution. By giving a monetary reward to those who create new works – works citizens want to have and are willing to pay for – we motivate writers and artists to create these works. The artist makes a buck, the audience get their entertainment, and everybody wins. However, history over the last few hundred years shows it’s possible to get a huge amount of cultural innovation and creation with pretty weak copyright rewards. So one way of critiquing the expansion of copyright is to say that they have tipped the balance too far toward the creators, and have unjustifiably limited the uses granted the work’s audience – including all the audience that would have been able to enjoy the work if not for the constraints of copyright.

Many critics of contemporary copyright make this sort of argument, and it is an important one. Some people might object that it is hard to make these kinds of determinations about which policies are more likely to make people happy, and others might even be sceptical about whether we can add together each person’s happiness to create a meaningful overall total. But these are not my worries. Indeed, when I first started the PhD work that ultimately led to Intellectual Liberty, I was myself a card-carrying utilitarian. But as readers of this blog will know, I changed my mind.

My main concern with the use of this utilitarian argument is that many who use it in the context of intellectual property seem to suppose it is quite uncontroversial – as if it is just obvious and sensible that we should do whatever will maximise happiness or the ‘public interest’. But this way of thinking is very controversial. Utilitarianism can require us to sacrifice the one for the many, and can make extraordinary demands of individual people.

The reason utilitarianism encounters these problems is because it is concerned with achieving a specific goal (maximizing happiness) rather than ensuring the proper treatment of each and every individual. It is built around good consequences, rather than specific right acts. Moral theories that focus on the proper treatment of individuals are called deontological, and natural rights theories fall under this banner.

Why might a deontological theory – one concerned with proper treatment of others – worry about the extension of intellectual property rights? Broadly, there are two reasons.

First, there is the question of what we might call property over-reach. Natural rights theories – especially those that hearken back to John Locke – allow for individuals to get property rights over specific objects or pieces of land. Property rights allow people to take control over their lives, to reap what they sow, and to have a degree of independence from others – at least in the sense of not being beholden to those others for one’s very survival. To pay proper respect to a person requires respecting the sphere of the world that is their own. And this makes sense. After all, human beings are not incorporeal. They exist in the real, physical world. They need food to eat and a place to sleep. Almost all of their long-term activities and projects involve interacting with the world around them in some way. Even the most mental activities of a person (reflecting, learning, meditating, praying) require being in a space where such actions are possible. To only have rights over one’s own physical body – with no concern for the environment around that body – makes no sense.

Even as they require private property rights, however, natural rights theories constrain those rights. Why? Well, the answer is pretty obvious – and probably occurred to many readers as they read the last paragraph. If property rights really have all those desirable moral characteristics, and they really do tap into vital aspects of our humanity – having control over our lives, bearing the consequences of our choices and labours – then it is crucial for every human being, as a right-holder, to be able to acquire property rights. This doesn’t mean property has to be distributed equally, but it does mean that each person needs the opportunity to acquire property and build on it.

Locke expressed this point through the use of his ‘proviso’. There is a substantial debate about exactly what the proviso requires, but despite all the controversy the central thrust of it is quite straightforward. Locke argued that when people acquire new property, their acquisition is only legitimate if one way or another they leave ‘enough and as good’ for others. That is, if I want you to treat me justly by respecting the bounds of my property, I have to make sure that when I stake out my property, I am treating you properly by respecting your equal need to acquire property yourself. Once upon a time, this meant making sure there was land for you to farm or otherwise work productively. Nowadays in the developed world, the same concern is likely to be filled through ensuring people get a good education and have opportunities for gainful employment.

So the first way that a deontological system can critique property rights is by demonstrating that the people acquiring those rights are over-reaching – that is, they are taking so much that there is not ‘enough and as good’ left for others. Applied to intellectual property, the thought is that those who acquire new intellectual property rights (for instance by writing an original book) need to make sure that those coming after them will have the same opportunities to write their own books (and copyright them). The expansion in the scope, strength and duration of copyright is worrying, from this perspective. It is worrying because writers and artists have been able to draw upon prior culture and other’s original creations in creating their work, but now seek to grasp entitlements that would undermine the capacity of other future writers and artists to engage with and be inspired by their work in the same way.

In other words, a justifiable natural intellectual property rights regime has to be sustainable. It needs to make sure that it is justifiable to budding artists and writers in future generations as much as those in ours. Even as it gives people control of the cultural objects they have created, the intellectual property regime must have mechanisms allowing those cultural objects to play their role in others’ future creations of their own cultural objects. In the first part of Intellectual Liberty I explore several different ways in which contemporary intellectual property regimes can fail to achieve this sustainability.

The second reason a natural rights theory will have for critiquing property arrangements is if those arrangements transgress on other rights that people have. For example, suppose we thought people should have a right to travel – to be able to move about from one place to another. Such a right would not prevent others from owning property, but it might impact on how that property is arranged and understood. For instance, it might be required that there are roads between blocks of land, so that people can travel between them as they journey from one locale to another.

Are there natural rights that might be interfered with by expanding intellectual property rights? One answer is that intellectual property can interfere with free speech rights. Copyright, after all, prevents certain types of expressions; namely those expressions that involve repeating or sharing the original works created by an artist or writer. Indeed, the Copyright Clause in the US Constitution explicitly acknowledges this point. It carves out a space for copyright by allowing for Congress, in this context of original works, to impose limitations on people’s speech.

Rights to free speech are, I think, an important part of what is at stake here. But I do not think they are the whole story. For there is another right with which intellectual property can interfere; the right to learn about the world and to have that learning inform one’s choices and actions. This is what I call the right to intellectual liberty. It comprises the rights to apprehend, to investigate, to learn and to use what one has learned in governing one’s decisions and actions.

Why think that this right is important? The answer is that the human capacity for self-learning is one of humanity’s most quintessential capabilities, and one of the most profound ways that human beings take can control of their lives and empower themselves. Indeed, an enormous number of rights-theorists throughout history, spanning almost every part of the political spectrum, have lauded this extraordinary human capacity for learning, whether it is learning by oneself or learning in concert with others. And with good reason! In the second part of Intellectual Liberty I discuss no less than seven ways of understanding human freedom, including the ideas that liberty is, (a) leaving someone alone to do whatever they want to do, with whoever they want to do it with, (b) allowing people to pursue activities that are natural to the human being – perhaps including their pursuit of happiness or self-preservation, (c) allowing the person to govern the direction of their life, to have control over who they are and where they are going, and (d) allowing the person to protect and develop their own unique individuality.

The capacity for self-directed individual learning, I argue, is a crucial part of all of these different yet inter-locking conceptions of human freedom. Yet despite these many ways it can be justified as important, and despite the many times we can see echoes of it in the writings of rights-theorists, intellectual liberty is not entrenched in law and policy in the same way as other rights. In a way, there is a good reason for this. If a wide gamut of other rights is protected, intellectual liberty will usually be adequately secured. Imagine for a moment a person on their own in a virgin forest. If you give them basic bodily rights – that is, you ensure that no-one can physically interfere with the person as they move around – then this will usually suffice to ensure their intellectual liberty. They can search, look, listen, remember, experiment and so on as much as they like. They get intellectual liberty ‘for free’, so to speak.

But the expansion of intellectual property rights alters this happy picture. Increasingly, the world around us is not made up of untouched trees and rivers, but rather it is populated with the prior intellectual creations of others; books, laptops, cars, speeches, religious texts, songs and inventions galore. The more that property-based obligations (like those of copyright) constrain our access to and investigations of these things, and our subsequent use of them, the more that our prior capacity to learn about our world is being constrained.

Now there is no reason to be silly about this. It’s not like we have a vital need to know and enquire into absolutely anything and everything. There are some things that are very rightly none of our business. Equally there are many times intellectual property constrains us in ways that have little to do with human learning. I accept both those points. But there are aspects of the world that it is important to be able to learn about because those aspects impact upon choices we need to make regarding how we are to live, for example, or how we are to vote or what we are to believe. And even though not everyone will become curious about every part of the world around them, people do tend to become fascinated with various elements of it. We are curious and we like to explore. That is what it is to be human. As intellectual property expands, our intellectual liberty contracts. And that is a cause for concern.

This way of picturing things is different to the other ways that ‘user’s rights’ are usually defended. (‘User’s rights’ are the rights of those who aim to use works, as distinct from the ‘creator’s rights’ of those who crafted them in the first place. The idea is not new. John Locke in the seventeenth century castigated the monopolies held by book publishers of his day (including their exclusive rights to print ancient books, or all books of a certain type – like legal treatises) on the basis of the rights of ‘book buyers’.) When commentators talk about the importance of user’s rights, the rights they have in mind are usually rights to have access to a resource of a certain quality. For instance, it might be argued that we all have a right to a vibrant and diverse cultural milieu, from which we can be entertained, informed and inspired. This would give the state a positive role in encouraging the creation of new works (including through copyright), but also ensure that those works were available to everyone as much as possible.

I acknowledge there is something to be said for this line of thought, but I think the justification for the right to intellectual liberty is much stronger than the justifications that may be given for these sorts of user’s rights. Why? Recall when I began this discussion I spoke of how deontological ethics has the desirable feature of focusing on the way that one person treats another. Rights to have a certain status or to have a resource of a certain standard move us away from this classic deontological picture. It becomes unclear who has the duties to provide this resource. And even if we settle this question, declaring that Cho has duties to Chitra to contribute to her cultural environment, it seems quite implausible that Cho is treating Chitra in one way or another if he fails to do so. After all, he may not even know Chitra, Chitra may not even know him, and there may be no interaction whatever between them. And because Cho isn’t treating Chitra in any particular way when he fails to augment her intellectual environment, it becomes implausible to say that the impediments to Chitra’s learning are caused by Cho. Political liberty, as Isaiah Berlin famously observed, is not about what you cannot do in general, but is about what you cannot do because other people have prevented you from doing so. Intellectual liberty is a part of our political liberty, because it is a right ensuring that others do not prevent us from doing what we could otherwise do – intellectual liberty prevents others from filling the world around us with artefacts, and then demanding that those artefacts cannot be the subject of investigation, learning, report, discussion and warning. Unlike rights to have a certain status or to have a resource of a certain quality, intellectual liberty brings to the foreground the way that one person can worsen another’s situation by creating a new work, having it play a role in the other person’s cultural and informational world, but prohibiting their investigation of it.

Like any summary of a larger argument, I expect what I have said here will open as many questions as it answers! For those who would like to pursue it further, the book awaits…

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