Return to Conference Proceedings
Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. (Human Rights Manual 1993, p. 141).The ACM Code of Ethics also endorses this right to intellectual property. It claims that a member will 'Honour property rights including copyrights and patents' [1.5]. Discussions of intellectual property tend to focus on the damage caused by copying and on ways, either legal or technical, to make it more difficult. Rarely is the claim that it is wrong examined, although it is questioned by some not in the mainstream of the computer industry (for example, Epperly 1994, Garfinkel 1994, and Stallman 1993). Samuelson however, in the "Communications of the ACM", is a little more circumspect in her statement of this right to intellectual property:
As we work today to rethink about how to encourage learned men (and women) to compose and write useful books, it may be helpful to realize that copyright is a social construct that has been and should be tailored to achieve the purposes we have for it. It is not some predestined, static law of humankind (Samuelson 1995, p. 17).This point of Samuelson's is particularly important. Copyright, as we know it today, has worked well enough with print media, although photocopiers threw a small spanner in the works. Whether it can work in the electronic environment in a way which actually benefits humankind is another issue altogether. In this paper, we want to examine two aspects of the problem: technical and moral. While these are separate issues, they are closely related. Technical questions are relevant to moral ones for this reason: there is no point talking about what ought to be done if it is not technically possible or feasible to do it. Moral questions are relevant to technical ones in this way: if something can be done, there is always the question of whether it ought to be done. It might be found that copyright as we know it has no place in the new electronic environment.
It will be argued here that it is not at all as obvious as it is commonly assumed; that unauthorised copying is morally wrong (except insofar as it is morally wrong to act illegally). Firstly, some of the technical questions will be discussed. What is it possible to do (and will it be possible to do in the short to medium term) to technically hinder the copying of electronically stored works, or to monitor such copying? Attention will then turn to the moral issue of what ought to be done with respect to electronically-stored and distributed intellectual property.
The use of digital storage and easy duplication has given software companies some problems. Many have attempted to stop duplication by software or hardware means. Every technique can be defeated. For example, one of the best is to use a hardware key that the software looks for when it is started up. This is defeated by inserting functions in the software that look for access to the key and then changing the program to bypass that check. Now most of the larger companies are using anti-pirate associations such as the Business Software Alliance BSA (1996a). BSA claims that approximately fifteen thousand million dollars was lost to software piracy in 1996, or fifteen times the number of sales of all Elvis Presley recordings in dollars (BSA 1996b).
Computer networks such as bulletin board systems have always caused problems, but the Internet being much larger, has made the problems much worse (Law and Order 1996). The ethos of people on the Internet has always been to share. The early use of the Internet was to share software created through grants mainly from the US National Science Foundation. One of the requirements was that any software created was for the public good and so it was placed in the public domain. With commercial interests on the Internet, this has changed. Now, even public comment can be considered copyright material (Templeton 1996). Many of the 'old guard' would rather commercial interests have their own Internet.
How can information technology be used to detect copies? While text on the Internet is duplicated possibly hundreds of thousands of times if it is a network newsgroup article, using the technology of 'web-crawling' search engines, it is possible for a copyright holder or an association acting for copyright holders to 'trawl' the Internet looking for verbatim duplications of deposited material. This can be done for non-text as well as text material. Guard frequencies can be applied to audio and video material so that if all recording devices don't record when these frequencies are present, then duplication will be thwarted. These systems only stop the casual pirate. Similarly, digital images can have 'signatures' embedded in them that are almost invisible. Promoters of such technology claim the image can even be modified by image-processing software without losing the signature. Methods such as guard frequencies are applied to audio and video material with an effort to make manufacturers produce equipment that stops recording if these guard frequencies are present. More complex 'signatures' could be added to any non-text (or word-processed) data (Erickson 1995) as long the viewers or browsers were suitably modified.
Easy duplication provided by information technology is matched by facilities which enable the detection of the duplication by copyright owners. All it takes is the laws to make sure that all software uses the copyright signature detectors that refuse to allow the data to be shown (or played) if the user isn't authorised.
Just as the WWW and cheap computers allow anyone to publish electronically perhaps this is how copyright will work:
I spent the next morning dealing with the curator for a large insurance company, who was looking for a change of decor for a few hundred lobbies, elevators, and boardrooms, real and virtual. I had no trouble selling her some suitably-dignified electronic wallpaper, by some suitably-revered young talents.Some starving artists put low-resolution roughs of their work into network galleries, hoping to strike a compromise between a version so crude as to be off-putting, and one so appealing as to make buying the real thing superfluous. Nobody will pay for art unseen - and in the network galleries, to see was to own.
Physical galleries - tightly run - remained the best solution. All my visitors were screened for micro-cameras and visual cortex taps; nobody left the building with anything more than an impression, without paying for it. If it had been lawful, I would have demanded blood samples, and refused entry to anyone with a genetic predisposition to eidetic memory.
(from Greg Egan's short story Seeing)
Owning an idea, or something abstract, is not simply like owning a physical object. Ownership of a physical object involves the right to continued use and enjoyment of it; if it is a car, for instance, and I take it from you, my theft of it consists in my violation of that right because you are no longer able to have that use and enjoyment. Taking intangible things like ideas, however, does not exclude their use and enjoyment by the owner. I can take your software by copying it and we both can use and enjoy it. Intellectual property is non-exclusive. (Strictly speaking, it is expressions or implementations of ideas which are protected by law, and not the ideas themselves. Without wanting to argue the point here, we have some reservations about this distinction, but fortunately the argument of this paper does not depend on it.)
Another interesting aspect of intellectual property is in what sense or to what extent is an idea mine? If I build or buy a shed, I know what is mine. If I either provide all of the labour and materials, or pay for everything myself, it is my shed, other things being equal. But an idea is not like this, even if the article, painting or software which is its manifestation was written or painted by me. Ideas come from anywhere and probably any idea that we have is not ours alone. Most of my ideas come from someone else. At best, when I am 'original', I express an idea in a new way, I see associations between ideas not noticed before, I see the relevance of an idea in some situation, or I combine ideas in a new way. While these can all be significant, in all of them anything creative that I achieve is the adding of something to pre-existing ideas which I have obtained from others. So to what extent is the new idea really mine? Given that I contributed only a little, why should I claim ownership? If I contribute a little to your shed, perhaps I can claim that I own a little, morally anyway, but certainly not that I own the whole building. Similarly, if I write an article, most of the ideas will have come from elsewhere (most of the ideas in this paper came from elsewhere), so why should I be able to claim sole ownership?
What is involved in the ownership of intellectual property such as text, images or computer software? If you create software and I steal it by copying it onto my disk or into my area of the computer, you still have it. What I now have is simply a copy of what you still have. This, as already seen, is an important difference between intellectual property and other property. Intellectual property rights do not grant exclusive use and enjoyment of that owned. They are concerned more with control of who can use and enjoy the property, and who gets acknowledgement and financial reward from that use and enjoyment. So the main issue is not taking something from the owner or creator and thereby depriving him or her of access to it. The main issue is copying.
Probably the most famous justification of property comes from John Locke (1698) who argued that if one 'mixed one's labour' with something then one had a legitimate claim to it. He did, it must be said, place some restrictions on the right to appropriation. There had to be, for example, enough and as good left for others. I would not, on Locke's view, have a legitimate claim to something even if my labour was in it, if I deprived others of the same thing. The basic thrust of this justification of property is that if I construct a shed, it is mine because my labour is mixed with it. A part of me is in the shed. This is prima facie a reasonable account of why we have intellectual property rights. There is always enough and as good left over for others. There are plenty of ideas to go around, and expressions of ideas. The main weakness of this argument of Locke's, as Nozick (1980) points out, is that it is not obvious why we should gain what we mix our labour with, rather than simply losing our labour. If I poured a can of tomato juice, which I owned, into the sea, clearly I would not thereby own the sea. I would merely become juiceless. It is not a general principle that we acquire something merely by mixing something we do own (even our labour) with it.
A second justification is based on dessert. A producer or creator deserves reward for his or her production or creation. If I create something I deserve something in return for my effort. This has some intuitive appeal, but it does not justify ownership. Reward does not imply ownership, even if in some cases it might be a just reward, but it is not the only one and perhaps not the best one or the one that the creator wants. There are many ways in which one could be rewarded for creating or producing something without being given ownership over it. One could be paid in money, or given a long holiday! Or perhaps the creator may prefer just gratitude or recognition - see Hettinger (1989).
This justification appears stronger if moral rights and not commodity rights are considered. In this context, a moral right is the right to acknowledgement as the author or creator. A commodity right is the right to sell or otherwise profit financially from the property - qua a commodity. It is one thing to say that we deserve to be acknowledged as an author or creator of something we have produced. It is quite another to maintain that we should have the right to control its access to others.
Now for the utilitarian argument, which is probably the most common justification. An owner of intellectual property is deemed to lose if the property is copied in terms of the ability to sell the idea or perhaps in terms of prestige or promotion. If I have a good idea, paint a good picture, take an interesting photograph, or develop good and novel software, I want people to know that it is mine, and so, perhaps, gain in one or more of the ways just mentioned. If copying were freely allowed, there would be no money to be made and profits must be available or nobody will make the effort to develop their ideas - or at least that is the idea. So the issue is essentially one of harm, both to the individual owner, and to society in general. Again of course, the moral/commodity right distinction is important. Some of the issues, like prestige and promotion, can be addressed by safeguarding moral rights alone.
Before commenting further on this, we will consider the question, in another way. When might it be legitimate to copy the work of another without explicit permission? At one end of the spectrum lies the case where a work is copied and passed off as the work of another for commercial gain. At the other end it might be the scanning of an image from a magazine solely for the purposes of experimenting with morphing. Or it might be using 'clip art' to create a new image or copying software purely to see how it works, with the intention of buying if it is suitable. What are the main differences between the two ends of the spectrum? (What I have placed at the legitimate end is not uncontroversially legitimate.) In the first, the copier gains financially at the expense of the owner, and there is deceit involved. In the second case, no financial gain is made from the copying, or if there is, none which affects the owner of the work - and no deceit is involved. The copier can quite happily acknowledge the source of the work or software if the need arises. Perhaps in some cases like this, 'fair use' will apply. At the illegitimate end of the spectrum harm, particularly financial, is again seen to be an issue, and so is deceit.
Financial harm caused to the owner is at least one reason then why copying is wrong. But it is not so simple. That harming anyone unnecessarily and intentionally, either physically or emotionally, is unethical, is generally accepted. But harming someone financially is not so obviously wrong, even though theft and robbery are not usually considered to be desirable activities. The possibility of financial harm, in fact, is built into the free market system. It is frequently argued that having a free market is better overall than not having one, even though some people will suffer. So harming someone financially in itself is not generally considered unethical. But financial harm does play a part in the argument as we saw a moment ago. The generation of new ideas is necessary for a society to prosper. It can be time-consuming and costly to generate and develop ideas, so there must be reward for those who do. If there is not, nobody will bother to create - and the most important reward is financial. Without financial reward, society's supply of new ideas will dry up. Therefore there must be some system of copyright and patent regulations which protect intellectual property. So one argument against copying then, from the perspective of harm, is the harm caused to society at large if there were no restrictions on the practice. This 'incentive to work' argument dates back to David Hume, who argued that a person's creations should be owned by him or her to encourage 'useful habits and accomplishments'.
It could argued on the other side of the ledger, that if ideas were all in the public domain, and if anyone could work on and develop anything regardless of where the idea originated, we would all be better off because more would be developed. That the source of new and innovative ideas would dry up without copyright and patent laws to facilitate financial reward is little more than an article of faith. Artists, academics and scientists frequently create without such reward. Perhaps acknowledgement is enough. Or perhaps creation is its own reward. It must be pointed out that this is not an argument against moral rights to intellectual property, only against commodity rights.
The most that this discussion questions of course, is whether society in general suffers from copying of the work of others, not whether individuals will be harmed by having their works copied. This can certainly happen in our present social structure. This individual harm must be taken into account even if society as a whole would be better off with no restrictions on copying. But it is not an overriding consideration. As we have already noted, some individuals suffer in a free market economy, but the current wisdom is that such an economy is still better than its competitors. So it might be that even though some individuals suffer as a result of some copying, society as a whole might be better off if copying is allowed.
Copyright and patent laws restrict the freedom of people to use ideas, unless they had expressed the idea first. It may be that this restriction on freedom is justifiable on the utilitarian grounds that it encourages initiative and hard work and so benefits society. However, there is also evidence that people would continue to create without this protection and that the freedom to use any ideas that were around would actually lead to more useful development. The jury is out. We do not know which would be the most beneficial overall. The central point, though, is that the burden of proof to justify their position should be on those who want restrictions - and they have not made their case.
Return to Conference Proceedings