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Intellectual Property: The Impact of the Web

Andrew Alexander

University of Melbourne
Australia

The Problem

Recent developments in technology, in particular the growth of computer networks, have meant that information can now be transmitted, accessed and reproduced far more quickly, easily, anonymously and - in many cases - cheaply, than was previously the case. Consequently people with access to these networks have a novel inducement to act contrary to the property laws - especially copyright laws - which allocate rights over intellectual goods, and it seems likely that in fact there is widespread flouting of such laws. These developments have been met with dismay in some quarters : the Melbourne historian Janet McCalman, in the course of cataloguing the potentially disastrous effects of the spread of electronic publishing for example asserts that "copyright for academics is ... the cornerstone of freedom of speech and the protection of all learning." [1]

Whether or not recent technological developments present the threat to important goods that McCalman believes, the present situation appears to be unstable. We have, on the one hand, increasing numbers of otherwise law-abiding people breaking the law with relative impunity, and on the other, another significant group aggrieved that their legal rights are not being respected or enforced. There are at least four ways in which this situation might be resolved. Firstly, the present laws could be rigorously enforced. To do this would involve an enormous extension of government surveillance of, and interference with, the activities of large numbers of its citizens. Secondly, rather than increasing the policing of the law in such a way, the penalties for breaching the law could be substantially increased , in the hope that the fear of the consequences of being caught, however unlikely, would deter potential law-breakers. Thirdly, the channels for the transmission of information could be more tightly controlled, with a kind of centralised "clearing-house" through which all messages would have to pass, where they could be checked for legality. Finally, the law could be altered to decriminalise unauthorised exchange of otherwise legal information. [2]

Other things being equal, it is good to have an unrestricted flow of information, and good to minimise governmental interference in the lives of citizens. So, other things being equal, it would be good to alter the law to decriminalise the unrestricted exchange of information. In the rest of this paper I will be mainly concerned to examine the issue of whether other things are equal - what arguments there are against decriminalisation, and what strength these arguments have. In some cases assessment of their strength depends on factual considerations, and so must be speculative, given the unclarity that exists about such questions as the difference - negative or positive - that the growth of computer networks has made and will make to the market in books, and the extent of plagiarism, misuse and distortion of intellectual productions by network users. Even in these cases, however, we can try to be explicit about the structure of the arguments, so that if and when the relevant information becomes available we can put it to use. [3]

Property Rights

Any form of effective property rights restricts people's free access to goods which they desire or need, so it demands justification. Property rights in intellectual goods would seem particularly difficult to justify. To see this we need to draw a distinction between two classes of goods, which following economic convention, will be called joint and non-joint goods. A good is non-joint when it is scarce in the sense that consumption by one person diminishes its availability for consumption by another. So an apple is non-joint, for instance, since my eating it means that you cannot. A good is joint, on the other hand, when consumption by one person does not diminish its availability to others. Intellectual goods, such as ideas, are not scarce in this sense, since one person's availing themselves of an idea does not, in itself, make it any harder for others to do likewise.

The imposition of property rights, restricting access to goods, would appear much easier to justify in the case of non-joint goods than in the case of joint goods. After all, consumption of a non-joint good by one person means that other will be, in fact must be excluded from its consumption. A determination has to be made as to who will miss out, even if this determination is, as it were, the determination of fact, when one person does consume it, thereby preventing others from doing so. Unsurprisingly, strong social norms tend to arise concerning who should be entitled to access to such goods - norms which are reflected in, and reinforced by legal prohibitions - and it is difficult to see how there could be a viable society which did not have generally respected norms of this kind. Matters are rather different with joint goods, such as ideas. On the face of it there would seem no need for restriction of access to such goods, since such access does not diminish the availability of these goods, And in fact, for many such goods, perhaps even most, access is (legally and actually) unrestricted. This is true, for example of the vast amounts of information in public circulation. Nevertheless, it is not always true, since there are various forms of property rights over intellectual goods.

Such property rights are often not treated with the same degree of respect accorded to property rights over non-joint goods - people who would be horrified at the thought of stealing a packet of chips may blithely engage in software piracy or unauthorised copying of videos. The discussion above perhaps helps to show why this is. In a clear sense no-one is made worse off merely by the consumption of joint goods, so it is difficult to see that one is doing anything wrong in engaging in such consumption. If I eat the piece of pie you desire you are obviously made worse off than if I had refrained from eating it, just in virtue of my eating it; and if I refrain from eating it you are better off than if I had eaten it. But if I copy a video or a text, it is hard to see that anyone is worse off than if I had refrained from copying it, just in virtue of my copying it. In fact in the copying case the furniture of the world has not been diminished, it has rather been increased, so no-one is worse off, and someone is better off. In the pie case on the other hand, consumption by one does diminish the furniture of the world: someone is made better off , but at the cost of someone being made worse off.

Given their character as joint goods, the justification of property rights in intellectual goods appears problematic in comparison to the justification of property rights in non-joint goods. The imposition of property rights over some good has (or at least is intended to have) the effect of restricting access to that good. In the case of joint goods, such restriction seems both unnecessary, since one's person access cannot be diminished by another's, and inefficient, since it deters people from consuming goods, where such consumption would make them better off, and others no worse off. And the sociological fact that there tends not to be the same general acceptance of norms of restriction to access to joint goods as there is in the case of non-joint goods means that the law will be in a relation of opposition to social norms, rather than one of mutual reinforcement, so the enforcement of such law is likely to be unpopular and costly.

Given these problems, what kinds of justification (if any) can be given for the imposition and maintenance of intellectual property rights, in particular copyright? Before attempting to answer this question we should note that there are really two, importantly different, clusters of rights that fall under the general heading of "intellectual property". The first of these is comprised of commodity rights - rights that enable an object to have commercial value to their bearers, such as the right to profit from the use of the object, the right to exclude others from its use, and the right to temporarily or permanently alienate these rights to others for profit. The second is comprised of so-called "moral rights", such as the right of attribution - the right of the creator of an intellectual good to be recognised as the creator - and the right of integrity - the right not to have one's creation mutilated, distorted or otherwise used in ways offensive to the creator. It is important to see that these two clusters of rights are both practically and conceptually distinct. It is possible to have one without the other, and they may be - and have been - justified in different ways. It is to the consideration of commodity rights that I turn first.

Commodity Rights in Intellectual Goods

Obviously, the kinds of developments outlined above, such as the growth in unauthorised transmission and reproduction of copyright material, involve the contravention of legally held commodity rights. To the extent to which such rights are desirable, then, these developments are bad. There have been two main sorts of arguments to the effect that these rights are desirable. The first focuses on the desert of the person to whom rights are granted. For example appeal is made to "creator's" rights: that someone successfully laboured to make a new good available for others should entitle them to property rights in that good. The second, consequentialist line of justification looks, not to the desert of the person to whom property rights are granted, but rather to the social benefits consequent on the incentives to engage in intellectual production that possibility of being rewarded with such grant provide.

One way of justifying the imposition and allocation of commodity rights by appeal to desert is to depict it as a device which enables innovators to reap the rewards they merit for their innovation through the mechanism of the market. This argument seems to me to fail, since there is no direct relationship between market reward and merit. Many commercially lucrative products pander to trivial or even depraved tastes: it is arguable that the writers of soft-porn novels do not merit any reward - in fact they may merit condemnation - as a consequence of their activities, however profitable their activities may be. By the same token, other creators may merit rewards far beyond what they gain through the market.

Another way of justifying the allocation of intellectual property commodity rights by appeal to desert is to claim that if profit is to be made from some innovation, the innovator deserves at least some of the profit. This claim rests on a simple notion of fairness - those who are responsible for producing some consumable good should have access to it in proportion to their contribution to its production. This argument seems to me more plausible than the previous one, but we should note that its force is limited in at least a couple of important ways. Firstly, it does not in itself show that others should not have access to the good where no profit is thereby produced. Secondly, given its conditional form, it does not even show that it is justifiable to make any profit from the good.

To show that - that it is justifiable to profit from intellectual goods - a separate argument is required. The argument from incentive, mentioned above, is such an argument. This line of justification has been historically very influential in the rationalisation of intellectual property rights. It has often been claimed that the allocation of property rights to innovators provides necessary incentives for both the production and dissemination of desirable intellectual goods. Without such property rights the potential for the innovator to benefit from his innovation would be small, since others can easily gain access to it and reproduce it. Consequently, if the process of innovation is time-consuming or arduous - as it often is - the potential innovator would have good reason not to engage in innovative activity. The allocation of intellectual property rights transforms the incentive structure. If am rewarded every time my innovation is used then I have an incentive both to try to produce it, and to have it disseminated as widely as possible. Such dissemination will benefit not only the holder of the intellectual property right, but many others as well.

This argument is consequentialist in form, so assessing its strength involves the consideration of both relevant facts about positive and negative consequences, and of counterfactual probabilities - what are the likely consequences of alternative possible arrangements. Turning to the factual matters first: there are economic costs involved in the enforcement of a regime of intellectual property rights, since such a regime imposes costs on consumers that they would not otherwise bear. Though intellectual property rights, in the form of patents and copyrights, have now existed for over three hundred years, there appears to be no clear evidence that the overall economic benefits consequent on their institution outweigh their economic costs, or for that matter that they play a major role in the promotion of desirable innovation. What evidence there is appears to give cause for scepticism about their general importance, though they are arguably significant for particular firms and industries. [4] Further, as implied above, there are other significant costs involved in a regime of intellectual property rights, given the need for extensive policing to enforce them, and these are not simply economic costs.

As to counterfactual considerations, we know that the abolition of commodity rights in intellectual goods would avoid the various (growing) costs associated with its retention. Furthermore, though it seems plausible that incentives are needed to promote desirable innovation, such incentive need not consist in the opportunity to gain commodity rights over the innovation. Those who work within research organisations, for example, are likely to have financial incentives to make significant innovations in the form of enhanced opportunities for promotion. Increasing public funding for such organisations would increase the scope of such incentives. And of course, many incentives, such as public recognition, are not essentially financial at all.

The desirability of the continuation of the grant of commodity rights in intellectual goods, on my account, rests on matters of fact. In the absence of sustained empirical investigation and economic analysis of the impact of the developments outlined at the beginning of this paper we are not in a position to come to a definitive conclusion about the justifiability of preserving the status quo. However, it seems to me to be likely, all things considered, that a decriminalisation of the unauthorised exchange of information where no profit is generated through such exchange, and a retention of commodity rights where profits are generated would be preferable to the present system.

Moral Rights in Intellectual Goods

Before considering the justification of the moral rights component of copyright it is worth noting two differences between these rights and commodity rights. Firstly, whereas the increase in unauthorised transmission and reproduction of intellectual goods made possible by the growth of computer networks necessarily involves the contravention of commodity rights as they presently stand, it does not necessarily involve the contravention of moral rights, though it certainly makes such contravention easier. Secondly, while commodity rights are purely products of the law (in fact of statute law - there is no common law recognition of commodity rights in intellectual property) and will not be effective without legal enforcement, moral rights, as their name implies, are not mere creatures of the law, and it is at least conceivable that they, like other moral rights, may be widely respected for reasons which have nothing to do with the fear of legal penalties.

Claims for the desirability of moral rights over intellectual goods typically appeal to some version of what, following Hegel, I will call the argument from personality.[5] Very briefly, this argument points out that the development and perpetuation of personality - a sense of oneself as an autonomous being among other autonomous beings, who is recognised by these others as such and in turn recognises them as such - depends, in part, on the exercise of purposive agency in the world. It is by engaging with and altering the external world that I develop a sense of myself as a persisting being distinct from the objects around me. I discover myself in the reflection of the objects I create - creation is in an important sense self-creation. In order to be able to develop and maintain this sense of autonomous self, then, I must be able to exclude others from interfering with my projects unless I want them to. In other words, the granting to people of moral rights over their creations is part of what it means to treat them as autonomous beings. This sort of argument appears to me have some force, and it is a force which we all feel: the fact that I wrote this paper is enough to make us all think that, for better or worse, it is, in some important sense, mine.

If the development of computer networks makes the legal enforcement of moral rights more difficult, then we should be prepared to develop other means to ensure their protection. Here I think reflection on the development of academic method may be instructive. In all respectable disciplines there is both a large degree of consensus about, and on-going discussion of, the methodological determinants of acceptable work: consensus about what counts as evidence, constraints on research, and so on. These determinants are themselves means to moral ends such as truth-seeking and usefulness, and their acceptance is largely independent of legal or other directly punitive systems. One of the inevitable effects of the growth in computer networks is a corresponding growth in opportunities for communication and discussion and -hopefully - the raising of moral consciousness.

Footnotes

[1]
Janet McCalman "Superhighway Robbery" The Australian April 23, 1995.
[2]
Janet McCalman "Superhighway Robbery" The Australian April 23, 1995.
[3]
Janet McCalman "Superhighway Robbery" The Australian April 23, 1995.
[4]
See D.S. Thomson et. al. the Economic Implications of Patents in Australia (Canberra: Australia Patent Office, 1981 esp. the papers by Macdonald and Llewellyn; C.T. Taylor and Z.A. Siberston The Economic Impact of the Patent System (Cambridge: CUP, 1973).
[5]
G.W.F.Hegel The Philosophy of Right (trans. Knox) (Oxford: OUP, 1976) pp.37-57.

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