Is Intellectual Property a Right or a Privilege?

Don’t mind me saying so, but I would make one incredibly bad lawyer.

When I argue my cases, I can’t stay on track, I digress into oblivion, and whenever possible, jump on the most hyperbolic formulations, usually for my sole petty amusement, at great cost to the convincing potential of my arguments. Also, while I certainly love spending hours dissecting the law, I tend to focus on its spirit, and shun its letter altogether; a luxury I understand no sane lawyer could ever afford.

Yet, I have opinions (bet you hadn’t noticed), and I sometimes discuss them. I sometimes even discuss them with actual lawyers, pretty eloquent [French] bloggers at that. A while back the conversation wandered over to the topic of intellectual property. At the time, I did a pathetic job of exposing my somewhat moderate, if slightly provocatively formulated, views on the matter…

Then recently, while reading up on entirely unrelated matters, I stumbled upon a small text by Mr. Jefferson that happened to sum up most perfectly the essence of my thought on this.

The most basic courtesy would call for me to write this post in French, as I am after all reporting and threading on a discussion I had in French, but the quoted material is in English and there’s been a real dearth of pompous highbrow rants on this blog, so I hope my original debater will overlook this unforgivable faux-pas and not hesitate to respond in whichever language he may prefer… Anyway, here is what this famous American communist close to my heart, had to say on the topic of intellectual property:

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 every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.

“The Writings of Thomas Jefferson”. Edited by Andrew A. Lipscomb and Albert Ellery Bergh, 1905

What Jefferson exposes with a talent and brevity I can only dream of is, to a fault, exactly what I unsuccessfully tried to convey to our aforementioned lawyer over the course of two lengthy discussions: Because sharing their use does not lessen in any way their intrinsic value, ideas, intellectual creations, cannot be looked at in the way of other physical properties. As such, protection of ideas, and ensuing legal rights regarding their use and exploitation, is a matter of encouraging creation within a society, not some sort of fundamental right any human should be endowed with. Heard me? Intellectual property is not a right.

Before I go further, and while you go look up HUAAC’s phone number in the directory, let me tone down this intentionally provocative statement with a bit of practical reality: believe it or not, when it comes to existing laws and [anti-]copyright activism, I stand on the conservative side of things. Putting aside this not-so-pointless debate over the motivations for these laws, I am unambiguously in favour of their existence, with the usual reservations when it comes to their more recent, greed-motivated, extensions. Oddly enough, anti-copyright zealots screechy rants irritate me as much, if not more, than the aberrations they set out to rectify. Most of them (the sane ones, at least), acknowledge both of Jefferson’s arguments: the non-exclusive nature of I.P. on one hand, the practical need to protect and encourage some amount of creativity within society, on the other. However, their response to his caveat, is to highlight every possible examples of creators who were able to make money off their creation while exercising little or no rights on it. They use it as a general argument against the very idea of property rights… Which is doing their cause a huge disservice: I love the open-source spirit, I really do… I think the Creative Commons licensing scheme has wonderful potential for collaborative content creation… but claiming it is a viable way for artists to make a living off their work would be akin to my advocating the end of social welfare on account that needy people could always try their chance winning the lottery. The few people who make a living producing only rights-free content, are often the very ones working in open-rights advocacy. Regular people do not usually get paid to go speak at open-source conferences.

That being said, while the preachy tone and argument flaws annoy me, their cause is a just one, and their fundamental motivation for questioning the legitimacy of I.P. as we know it, remains something I can relate to.

With this small precision, let’s go back to abstract inconsequential ethical musings on the matter, shall we?

To me, asserting the true nature of I.P. as a necessity rather than a right does not lead to questioning its very existence, it simply gives a much more efficient scale by which to measure the reach it should be given. For instance, once you no longer consider it a physical property that can be inherited but only a – very legitimate – incentive to creation, the idea that a work’s protection could reach 50 years beyond its author’s death seems rather ludicrous. But I do not really care to discuss the endless number of specific legislations on the matter, except to point out that they have reached a position where their alleged protection of one creator’s rights infringes entirely on society’s creativity as a whole. Furthermore, existing laws no longer serve the mere purpose of protecting one individual creator’s interests: by turning I.P. into an easily tradable commodity like any other, the law has made it a ground for corporate profiteering and legal battles more than anything else.

And so, the point of my argument is not, I repeat not to take down all intellectual property rights and declare it a pinko commie free for all. I am only suggesting that the law needs revising, and its revision needs establishing on the right predicaments this time.

While trying to debate this in a conversation yesterday, two valid points were made to me. Three, if you count that other guy’s uselessly dogmatic “I create it, therefore it’s mine” statement, repeated in a loud assertive voice, a valid argument. Which I don’t.

For one, was the idea that a creation owes its entire existence to its sole creator: it would never have come to exist otherwise, and thus should remain his property.

First, I sense there would be an interesting debate to have with Plato on this one. Or more simply, you could have a look at the number of ideas that simultaneously sprouted in separate corners of the world in recent history. But I will spare you that one, and suggest instead that this is not so much relevant to I.P. rights, as it is to crediting rights, which I reckon have no reason to follow exactly exploitation rights, more than they already do: I personally see no good reason a person could not be entitled to full credit for his creation, long after he has lost rights to earn money from it.

Another sensible argument I heard yesterday, and I hope I am not distorting it here, was that I.P. should be made a right, not a privilege, because it is the only source of income for a lot of people.

This, I think, might be one of the stronger arguments I have heard so far. It even manages to put some weight against Jefferson’s own “will and convenience of society’s” view: by establishing I.P. as a revokable right, one makes it a somewhat unstable source of income, thus less attractive to career creators and ultimately detrimental to society’s creativity. The only problem with this approach, is that it could be applied to many fields from which, everybody will agree, no rights should be derived. In fact, practically every aspects of the law pertaining to work interactions between individuals, is based on the very notion that it is revokable and needs only conforming to society’s convenience with the well-being of all as a goal: when a license to operate a business is granted to me by the authorities, the fact that it then becomes my only source of income does not make it any more protected from society’s higher interest (if you don’t believe me, talk to Big Tobacco about that one). Moreover, I would be tempted to add that the moment a society starts granting inalienable rights where it should only be giving temporary licenses, is when it loses sights of its constituents’ best interest (think: corporations’ legal representation without responsibility). But this is an entirely different debate altogether.

Anyway, I bumped into this relevant quote and felt compelled to reproduce it here, seeing how it perfectly sums up a few things I have been meaning to write about intellectual property for a long time now. It is also my way to feed the conversation I had yesterday, with somewhat more articulate arguments than my usual inebriated self is capable of. Additionally, I want to insist that, while I believe I have faithfully transcribed the opposite side’s arguments, misunderstandings and approximations are more than a possibility, and would be my sole responsibility. Feel free to rectify or add to it as you see fit.

Now if you’ll excuse me, I must go burn me some kulaks.


  1. Thorny issue if there is one. A few brain-dump-style, disorganized remarks: do you really believe that IP encourages innovation? From what I can see in the world of open source software, it’s quite the opposite: if I had to pay everytime I use a quicksort, or a certain data structure, or a compression algorithm, I sure wouldn’t try to develop anything. Just look at what happened when the owner of the patent on LZW tried to enforce it. Over all, the really inacceptable thing is the IP holder’s lobbying in order to try to establish a correspondance between a physical and an intellectual property; take DMCA or DADVSI for instance; the provisions that forbid to crack or circumvent a protection measure are downright ludicrous. It’s not lockpicking, and there are a host of valid reasons for doing so (research, recovering data after losing license files, interoperability…). As you noted, you’re not depriving anybody of their property. Furthermore, lockpicking (and the supply of lockpicking tools) is entirely legal as long as it’s your lock you’re tampering with. Why should DRM’d content be any different?

    Yea, maybe I’m trolling, but with the topics you’re covering these days, it’s deserved 🙂

  2. Wow. Thank you for that. I havent really thought about IP that much, but every time i come up against it, i get irritated. Jefferson’s quote captures my sentiments exactly, but your argument persuades me that there is more to it than than… privilege is a good compromise.

    Quote: “In fact, practically every aspects of the law pertaining to work interactions between individuals, is based on the very notion that it is revokable and needs only conforming to society’s convenience with the well-being of all as a goal: when a license to operate a business is granted to me by the authorities, the fact that it then becomes my only source of income does not make it any more protected from society’s higher interest.”

    Good point, and a pertinent one in Oz at the moment, as the Prime Minister publicly agrees to a vague idea of combatting global warming, but only insofar as it does not harm the business interests that create the problem.

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  4. From my perspective, there are three separate aspects:
    – Do individuals have a right to IP
    – Do corporations have a right to IP
    – Is it in societies interest to provide IP (e.g. thereby generating innovation)

    In terms of the last question, I think it depends a lot on the society. 3rd world countries that need to use a lot of existing ideas while climbing the development ladder (e.g. China) would benefit most from denying IP, as they would pay much more than they gain. Also, they are more focused at this stage of their development on reproducing and improving ideas rather than creating. This was very much the approach Japan took after WW2.

    On the other hand, the USA which has a huge investment in its patented ideas benefits from IP as a major potential source of protecting and levering this investment.

    Whether the world itself benefits as a whole….I just don’t have time to write pages on that and I suppose it has been covered to death anyways.

    Reference the rights of individuals and corporations, I see two aspects. One is the native rights (e.g. does an artist have the right of ownership of his creativity). Separate from this is the question of whether, having been granted IP by the legal system, this corresponds to now having a right. For example, if an artist didn’t have a native right, but if the legal system supports IP, surely as a democratic socity this makes it a right?

    This post doesn’t really answer anything. However, I just wanted to point out that there are a number of different aspects to the question, each deserving their own answer.

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