A Few Brief Thoughts On Intellectual Property Rights

We find it extremely odd, not to say perplexing, that those who wouldn't think of questioning the concept of exclusive ownership of real property (your land, your house, your car, etc.) think nothing of questioning, even condemning, the concept of exclusive ownership of intellectual property.

And just what is intellectual property? For the purpose of this thumbnail commentary we narrowly define intellectual property as, "literary and artistic creations, such as books, music, paintings and sculptures, films and technology-based works such as computer programs" as well as "performances of performing artists, phonograms, and broadcasts" and the like.* Intellectual property is protected by copyright law which body of law grants the original creator(s) of intellectual property exclusive rights to his (their) creation's use, and prohibits its use by others without the express permission of its creator(s).

While one could with some justice make an argument against the exclusive ownership of land (all land on Earth existed prior to any life forms inhabiting Earth, and therefore one could take the position that since land was not the creation of any individual or group of individuals, any claims to ownership of any portion of that land is strictly arbitrary; a product of physical conquest or mutually agreed upon social and legal contract), no such argument can be made against the exclusive ownership of intellectual property as, without exception, all intellectual property is the product of either an individual or several individuals, and therefore, almost by definition, is his (their) sole and exclusive property to do with as he (they) best see(s) fit. The protection of that fundamental right is embodied in copyright law, but there exist several lacuna and errors of reasoning in the legal definition of that protection, and that's where the problems begin. We will here address but two of these problems, for all others derive from them, and those two problems concern the duration and nature of the protection afforded by copyright.

First, the duration.

For what period of time should copyright protection be granted the creators of intellectual property? As the law now stands, that period of protection is arbitrary, and can be changed at will by the vote of the legislative body responsible for its establishment. In the U.S., that means the Congress of the United States of America.

But clearly, something is badly awry here. There should be nothing arbitrary about that period of protection. It ought to be granted the original creators of intellectual property for as long as they can benefit by their creations' use, which is to say, for as long as they live (the current term of protection is for the life of the creator(s) plus 70 years for which additional period there is no legitimate justification) which, so far as we've gone, is no different from the period of protection granted owners of real property by civil law.

But here the similarity between real and intellectual property begins to break down, which brings us to the nature of the protection which ought to be granted the creators of intellectual property.

Ownership of real property and its associated rights can be passed on by bequest from generation to generation, or be sold outright to second parties in perpetuity, theirs to do with as they see fit. Clearly, this is not in the best interests of anyone other than those to whom ownership is transferred either by bequest or outright sale, and that won't do at all in the case of intellectual property as the argument (and a very good one it is, too) can be made that such an arrangement works ultimately to the cultural impoverishment of society as a whole, which, unless one is a doctrinaire communist or extreme-left socialist, is not true in the case of real property.

Manifestly, something different needs to come into play here in the case of intellectual property, and one of the things that needs to come into play is some sort of restriction on the bequest or sale of ownership by the original creators, and the only restriction that makes sense is that such bequest or sale of ownership ought to be expressly and categorically prohibited. One might object that prohibiting the bequest or sale of ownership to second parties is denying the original creators of intellectual property one of the benefits of their creations' use which goes against the above stated principle that those original creators ought to be able to do with their creations whatever will most benefit them during their lifetimes.

Not so. Such a prohibition does not in any way restrict the original creators from bequeathing or selling the rights to the exclusive use of their creations to second parties during their lifetimes with the stipulation that upon their deaths ownership of those creations passes automatically into the public domain for the free use of anyone, thereby working to the cultural benefit of society as a whole as it rightly ought to.

Corporate entities will not like this idea one bit, but corporate entities should be given no consideration whatsoever in the matter as no corporate entity has ever created anything that qualifies as intellectual property within our narrow definition of the term (as separate and distinct from trademark qualified creations which are protected under trademark, not copyright, law), their internal (as opposed to purchased from outsiders) intellectual property created by one or more of their employees who, as creators, may, by contract, be obligated to sell for a nominal fee (say, one dollar) to the corporations that employ them the exclusive rights to the use of those creations for the duration of their (the creators') lives, after which time ownership of the creations reverts to the public domain.

As we said, corporate entities will not like this idea one bit.

There's then the collateral question of the doctrine of Fair Use; i.e., the legal use of certain portions of copyrighted intellectual property without permission from or payment to the property's creators.

But that's a question fraught with manifold complications of its own the addressing of which is the subject for another commentary.

* Definitions taken from WIPO (World Intellectual Property Organization).