Property <> Intellectual Property

Remember the Cassette and Crossbones?  "Home taping is killing music?" I do, but it never made me feel like a pirate. How about "You wouldn't steal a handbag?" Well, I wouldn't steal a handbag, but that has nothing to do with copying movies.


I have tried to take intellectual property seriously. I have been to seminars on the legal issues. I have lectured my customers' filesharing children about artists' incomes. I have paid money to Microsoft and actively sought free software. I have lectured my own children... and it just doesn't work. I pay for music downloads but I can't suppress the feeling that I am being cheated. I see Google stealing from authors by putting copyright books online and I just want to cheer... I don't think I'm alone; what's wrong?

There certainly is something wrong. Vast numbers of people are benefitting from work done by all sorts of creative types, without any intention of paying for it. Political, moral and economic rationales are conjured up, but it all boils down to a distaste for paying simply to make a copy or use a design. I feel that distaste, even though I know how wrong it is.

It's a commonplace that this problem arose when copying became easy. CDs, books and videos were fine to sell, if slightly dodgy to lend, when copying was laborious. We didn't think that was unreasonable at all. But as digitisation advances, so does copying. More or less fumbling attempts at DRM are swept away by the glum intractability of encryption and something that people were happy to buy and keep as a chattel in a plastic box, becomes a digital copy that we are happy to grab for free, and give to a hundred total strangers.

And this is a problem. Whatever you might think of Jedward or Jethro Tull, you will agree that among other things, they are economic actors. They work, they want to get paid, and if they chose to sell content, they are entitled to do so. They don't have to make recordings, but since we buy them we evidently want them to, and within reason they should be allowed, like any producer, to set their own price in the context of the market. ("Within reason"? Yes. All creatives are somewhat monopoly providers, and that's a market failure we're entitled to mitigate with life limits and fair use.) You might not miss Jedward, but I guarantee that your life has been enriched by ideas and expressions that someone made because they got paid to do so. We need this to go on.

So, why don't we take copyright seriously? My view is that it does not fit into the natural psychological "kinds" that are part of human nature. That's bad news, but we may be able to use the idea to salvage a way forward.

Fifty years ago human psychology was regarded as a social artefact, and our feelings about property were taken to be a result of growing up in the corrupt old world as it is. Remember "Property is Theft"? Not everyone believed that the purpose of property was oppression, but it was reasonable to claim that we could create a new category of property -- "Intellectual Property" -- by setting up the legal and market structures to support it.

That view of psychology is no longer so widely supported. Nowadays, gorged on a torrent or experimental data, it's possible to talk about a fundamental human nature as the root of our drives. I think this newer (and much older view) is correct. Property is not made up by jurists or bosses to create a social contract or to oppress the poor. It's the abstraction of our natural tendency -- our feeling -- to acknowledge exclusive rights in territory and things. (Those two properties are not the same -- they feel different -- and that's why we talk about real property which is land and things dependent on land, and about chattels which are everything else.)

It's not good enough say it's natural and leave it at that. The idea of a Natural Law, something which is internal to every human and the same for all, goes back to Aquinas and doubtless earlier. Since it's "obviously" true it went without challenge until philosophers began to be severely embarrassed by the theism which seemed to be the only possible explanation. The basis for the modern view is that a divine creator is not necessary, that human behaviours or rather the feelings that lead to them, are phenotypes -- like haemoglobin or opposable thumbs -- which have been shaped by natural selection. 

We say that these tendencies must be founded in superior reproductive outcomes: People who were a little more prone than their neighbours to acknowledge the property of others or to preserve their own, survived to have more grandchildren, who themselves inherited the same tendency. I guess that there would be more than one mechanism for this, but staying out of fights -- turf wars -- would be one, and getting better value out of the work that goes to make a basket or a bowstring would be another. The proneness can be very vague, just an occasional by-product of some other habit, but provided it inherits, that is enough for natural selection to take hold and multiply.

The implication of this view is that we aren't able to make something into property by just calling it so. If it doesn't feel like property, it's not property, and we will never acknowledge it in the same way. Property has to fit a template that matches lots of things like "identifiable", "tangible", "scarce" and "hard to reproduce". This has nothing to do with the justice of the position. We can acknowledge -- intellectually -- that the creators of a work of art deserve to benefit from their labour, just as our ancestors accepted, naturally, that the creator of an axe was entitled to control the use of it, but in a world where ideas can be duplicated endlessly and for free, the hope that we can turn IP into actual experienced property doesn't fit and won't work.

A video tape in a box? That's a chattel. A rip of a DVD? Whatever it is, it's not property. It's the denial that means that we don't think that the people who copy it are pirates, and the act isn't theft.

Does this seem too radical? We do acknowledge intellectual property, don't we?

I don't think we do.

You don't have to go far back in history to find a time when copyright was weird. The framers of the US constitution were modern enough to empower the federal congress to create IP law, but tellingly, they hardly mentioned natural property at all. That was totally obvious, and obviously a matter for the states. And then, decades later, the congress used its power to create intellectual property law, but did so in a way which pillaged foreign rights holders. It's pretty clear that framers and congress both regarded intellectual property as something well out of the usual way.

And if that doesn't convince you, how about China? Do you want to call it a nation of a billion knowing criminals? because it's not, they're moral people, but the nation hardly gives a moment's consideration to intellectual property in its day-to-day life.

So this seems like an attractive idea. Property is real because it's part of human nature, and intellectual property isn't. But there's a problem, because the most important sort of property is money and money is not human nature. Money is an invention, one of the most fruitful and productive inventions ever -- and absolutely not part of our natural capacities. And so, if we can invent and use money, why can't we invent and use intellectual property, and defend it with the same fervency and legitimacy that we defend money?

I don't know the answer to this. It's a question for practical psychology. I suspect it will simply be that one of the features that make money such a good trick is that it happens to check the boxes in our minds that identify chattel property. On that view, money works because it allows us to turn our intrinsic chattel-handling capacity into a tool for managing abstract value. I know that I still think of money as a pile of coins and I'm more familiar with finance than most people. The key win with money is that it only works if it can't be copied, so even though it's digital, it fits our minds well enough. But only well enough, not perfectly. I think that the reason we are never entirely happy with paid organ donation or prostitution, or market pricing, or interest, is because money just doesn't ever feel quite right. It's a fit, but not a perfect fit -- things like quantitive easing, fungibility and seigneurage wreck the illusion -- and the jarring hurts. IP is further away from the natural kind, too far to fit, and we can't make it work at all.

So I suspect the idea of a copyright or a patent as a chattel-like thing is doomed, but that doesn’t remove the moral (and economic) imperative to pay creators and defend their rights. What are we to do?

Well, I don't know. I think we might be too bound up in the web of international copyright conventions, and the entrenched legal structures, not to mention the reflexes of lobbyists, to actually change anything substantial at least in the short term.

But if it was my job to fix this, to start the move to a world where digital content was fairly paid for in a widely accepted way, I would begin far below that. We have to learn from the success of money: money fits the chattel concept well enough to work, and we have to bend IP to fit too. But part of the chattel idea is that they don't reproduce. If copying is easy, the chattel model will never work.

My proposal is to use territory instead. It's not land -- this territory exists in the cultural world, a world which is being endlessly explored and extended by creators and interpreters. The idea here is that the copying status is irrelevant: there is an album called "Living in the Past," a real thing which is independent of plastic disc, digital encoding or any specific performance, and that thing remains the private turf of Ian Anderson. We made the Internet into a place, we can make the cultural space real, and if we learn to accept it as a space we can learn to believe in the reality of turf rights within it, too.

This is not a project for lawyers. I suspect that much of the legal structure can stay -- we'll certainly need the limits on life, and the rights of limited free use that we have now, to deal with the creator's otherwise unbearable monopoly. We probably need to go further that way. It would be good if the creators would say how they want their stuff used and how they want to be paid -- which sounds easy but is so hard because they have to agree to work in a model that we are psychologically equipped to accept, and they may not like it.

So the first stage is education, and it might take a while. We need a generation of creators and consumers that understands that IP is the private turf of the creators, and the rest of us are allowed into that estate on terms they set. Then we will be able to start building the appallingly complex web of licences, rents, legal rights of way, control of attractive nuisances  and everything else we need to make a fair and acceptable intellectual property system.

Practical steps? Things that rights owners can do now?

First, I would stifle all the idiots who harm their own cause by accusing ordinary decent people of theft and piracy. I understand the rage, but it has to stop. These are terrible words for terrible things and they have a totally negative, reverse effect when you hurl them at people who know that, inside, they don't feel any guilt at all. 

Second, I would review the language used all the way through contracts and discussions and everywhere else to make sure that it moves away from the failed chattel model. The words to use should come from the idea of territory and trespass instead of things and theft.


And I would start to test my enforcement actions against the new standard. Trespass involves demonstrable loss. Without a theory of loss that people can accept, legal actions will discredit the idea of copyright and, long term, do me more harm than they'll ever prevent.


We have to take the poison out of this. Maybe I'm wrong, and best way forward is to talk about wages for creators. Maybe I'm right, or maybe we should be setting up wages and territory both. But I don't want to live in a world where creators don't get paid. We have to do something, and this at least offers some hope.