The following was written in an attempt to clarify my own position on copyright, patents, etc. — topics I’ve willfully neglected for too long. I’m not sure how much use this is to everyone else, though.Anyone who has observed a two-year old with toys knows that toddlers have no problem with the concept “mine”. Possession, and the advantages it brings, are something we instinctively grasp at an early age. Parents constantly need to plead with their children to share toys with siblings, and it’s clear from personal observation that such attempts at socialization are, kindly put, an uphill battle. We are born to possess.
And yet it is also clear that ownership and property are purely human constructs. Structured collections of atoms and volumes of space do not objectively exhibit ownership qualities that scientists can discover. It’s amazing, then, that modern society is nothing if not the result of an ownership layer placed seamlessly on top of a physical, objective reality.To be clear, communism does not represent the antithesis to a will to ownership. Communism does not question the existence of the notion of property. Its quibble with capitalism is about ownership structures — who (or what) should do the owning. For our everyday social interactions we all don ownership-tinted glasses, so that we automatically know which atoms belong to which, and behave accordingly. Without the glasses, we’d run afoul of the law within minutes.
One way to explain the existence of property is through social contract theory — property becomes the result of a pact individuals have made with society; it is a useful fiction whose precepts we willingly obey because it provides a robust mechanism for regulating access to scarce resources, which is necessary for the proper functioning of large and complex civilizations.
While this explanation might work as a utilitarian justification for the need for property as a legal concept in society, the origin of property is more likely explained along sociobiological lines. We have always vied to possess scarce resources, as do animals, often at great cost to ourselves. But prehistoric clans that developed and enforced social behavior that ensured predictable access to resources for its members were able to reduce these costs, creating the kinds of surpluses that allowed them to form cities (or kill less evolved clans for fun and profit). The journey from possession to property is a prerequisite for civilization.
I don’t believe most people ever see property in this light, however — as a useful social adaptation forged from evolutionary pressures. To many, property is as tangible and unquestioned a notion as God, that other idea without an objective basis in reality which nevertheless regulates daily life for a great many.
Can property become a more explicit choice for people? In some ways, it already has. Because the things that we produce and consume are now so diversified, different mechanisms for mediating compensation between producers and consumers have evolved: from purchasing outright to also renting, licensing, leasing, mortgaging, coöperative ownership, shareware and the Creative Commons movement. Ownership is no longer a monolithic given, but something whose precise terms we negotiate.
What needs to evolve, however, is a broader awareness of the functionalist role property plays in society. It is only then that both producers and consumers will be informed enough to improve on the current mechanism with something that has the potential for even greater equity and/or utility. There is some urgency in the matter when it comes to intellectual property, because technology recently abolished the problem of scarcity when distributing music, text or film. With many consumers finding it extremely easy to “rip, mix and burn”, producer interest groups are reacting by trying to narrow the definition of ownership to something akin to passive enjoyment, while simultaneously looking for encryption schemes that work.
Both extremes — unfettered appropriation/copying on one end, a clampdown on options on the other — undermine the role property has played in society — as a legal guarantor that effort begets reward. Both extremes stifle creativity. A new middle ground is needed, and this is precisely what the Creative Commons is trying to provide: a spectrum of rights that a producer can choose from to offer the consumer.
Is there room for improvement? The main problem any new compensation scheme faces is robustness. If it is possible to replicate information with impunity, then the incentive to become the parasite in a positive sum game might prove too strong. Since encryption won’t ever work properly (because consumers will always be able to record what our senses are meant to perceive), I suspect the only long-term solution is education about the benefits of equitable compensation. This in turn implies the need for an active appreciation of why the notion of property exists, as opposed to an inherited, unquestioned predisposition for it.
Some concrete proposals, then, bearing in mind the above:
— Clamp down on the absurdly prolific levels of patents being granted, many of them uncritically. Also, the rights of patent holders are too strong when viewed from the perspective of their intended aim, which is to maximize creativity and hence social utility. Perhaps these rights could be reined in, for example by compelling patent holders to licence the patent to all comers, and capping the fees to a percentage of revenue. This way, standing on the shoulders of giants becomes affordable and legal again.
— Restrict the terms of copyright for intellectual property to at most the life of the author. Not 95 years, not life + 70 years. There should be no author estates — they prevent society from benefitting freely from the works when the author has no possible further use for compensation, seeing as the author is dead.
— By the same token, abolish inheritance. If you’re married and you die, then your property belongs to your spouse until he/she dies, but offspring really need to get their own life. This should be the basis for all meritocratic liberal societies.
All three proposals stem from a desire to maximize the incentive to innovate in society. All tweaks to the notion of property should be judged on their likelihood to achieve this.
With no inheritance, people would stop saving and/or creating wealth the second they had enough to last them through their lifetime (or they would find ways to transfer the wealth to their children by other means). And that would rather change the economy – reduce investment and increase spending in the short run, reduce it in the long run.
Right: Abolishing inheritance would essentially abolish inheritance for the poor. The rich will always be able to get around such things. And of course it would abolish a lot of the idea of property, certainly in the realm of real estate. No one could ever really own a house, say: they could only really lease it for their own lifetime or that of their spouse.
You say “And yet it is also clear that ownership and property are purely human constructs,” but I would beg to differ – ownership and property are actually far more delineated in the animal kingdom than they are in the human kingdom (to make a Rousseauean division that I’m not even sure I agree with). Just take a look at wolf packs or prides of lions to see personalities with serious ownership issues.
That said, I use Creative Commons licenses for my own creative work, but they don’t have a category of license that I would really like to use, which is as follows:
You are free to appropriate the elements of this work and profit from them in any way you see fit as long as you meet the following conditions:
1. You alter the original work beyond recognition
2. You improve upon the original work
3. You give the creator of this work no recognition whatsoever
Those are the conditions that produced the work of Shakespeare among others, and there is no way for the culture to advance without such creative appropriation.
The abolishing of inheritance idea is the one thing I’m a bit unsure of. I definitely think it is more equitable, but that would only be the case if it were workable. The losses from those who who would defect from the game would have to be measured against the resources that are freed for giving the next generation an equal chance.
If inheritance taxes were 100%, income tax would be lower, as would VAT, but _only_ if people did not alter their behavior as a result. Why they should live their lives depending on what happens to their material possessions after death is beyond me, but I’ll grant you that it is quite likely the case that they would, which would diminish the feasiblility of the idea.
Whether net net the abolition of inheritance means society innovates at a faster pace is not clear to me. If it were to have no overall effect on innovation, then I’d be in favor for the solidly liberal reason that people should be the makers of their own destiny.
John, when I meant “purely human” I meant to set the idea in contrast to a scientific objective view of reality. In any case, animals understand possession, whereas I use the words property and ownership as legal notions.
I like your new creative commons category, BTW. Is there any reason why we _have_ to choose one of the CC options. You could in fact make your own, right?
You’re right, I could make my own, but I’m too lazy. I’ll probably get around to it sooner or later.
“Why they should live their lives depending on what happens to their material possessions after death is beyond me, but I’ll grant you that it is quite likely the case that they would, which would diminish the feasiblility of the idea.”
Heh, why is that hard to understand for you? As Sophie Tucker put it, “I’ve been rich and I’ve been poor. Believe me, honey, rich is better.” If you care enough about your children to raise them, you care enough about them to want to give them a better life.
As to intellectual property, I think convenience of use and access will sell it as well as it sold software, and illegal is mostly inconvenient in the West. No-one employed wants to bang their head off the wall for days getting Linux running when they can pay 100 € for Microsoft Windows XP and have it in place in a couple of hours; offered the choice between reliable RIAA servers that allowed you to stream movies and the general flakiness and low speeds of emule and the file sharing networks, if you have the money the choice would be clear.
How thin are the New Yorker’s margins, do you know? Because I see loads of good writing on the net, but nothing with the sort of investment of time necessary for some of their longer articles. I hope it stays around, for at least that reason.
Yes, I’ll cede the point on inheritance (though the tax should still be high) on pragmatic grounds, though not without noting that this means a certain bias against intellectual property as opposed to say, real estate. Intellectual property gets returned to the commons eventually, but real estate can stay in the familiy in perpetuity. I see no inherent reason why real estate tycoons and their heirs should be the only ones benefitting from such societal largesse. After all, the rights to Shakespeare’s opus and a choice piece of real estate both generate revenues on investment. Both rights impede others from using the texts/land to their ends.
Re general inheritance, then, how about life + life of designated heirs as terms? It would work like this: Joe Millionaire designates $1 million to three heirs. When Joe die, the heirs get to do with the money as they wish, but when they in turn die the state will take the first $1 million (adjusted for inflation) off any eventual inheritance the leave behind.
Yeah, I like the life plus life of
designated heirs idea. It has the
advantage that it motivates the heirs to
do something above and beyond
maintaining what they inherited, if they
want to leave something to their kids.
Since value is a social construct that’s
based in good part on what people judge
will happen to the good in question in
the future, and since the likelihood of,
say, Manhattan becoming uninhabitable
and property in the area worthless by
2055 is a good deal less than the
likelihood that no-one will be listening
to the work of Bryan Ferry in 50 years’
time, I’m okay with the bias you
describe. The ideas that will retain the
most value are uncopyrightable; I would
be happier to see Einstein’s heirs rich
because of e = mc≤ than I am with
Joyce’s being comfortable because of
Ulysses and their concomitant whining
about innocuous uses of his work, but I
see no prospect of that happening.
Oh, and on a completely unrelated note, have you ever read Bas van Fraassen in English? His syntax hurts my head, and I’d be interested if, as a Fleming, you find him much easier to handle.
It seems that we are in another one of those period of history where it is considered more ethical and moralistic if something benefits “society” or the “collective” than if it just benefits the individual. This type of morality has its routes in so many religious/philosophical currents that I won’t even comment on its origins. However, I will say that I consider this type of philosophy to be the very antithesis of morality. Morality is that which enables the individual to excercise his/her rational mind, in order to do those things which are condusive to this ability to live and be happy, without doing so at the expense of another individual’s freedom to think and act likewise. In order to live, in an honorable fashion, without stealing and/or looting from others, we need to trade that which we own for that which someone else owns. Property and intellectual property’s proper ethical value is not in the incentive it provides to improve society, but in the reward it provides to individuals who are prepared to actually, live,invest and trade honorably by ensuring that they have something that they can use to live, invest and trade with others who want to live by the same code of honor and morality. Whether or not resources are scarce or abundant is not relevant, what is relevant is ensuring that we never sanction a code where the many have the right to that which has been earned honestly by the few, because that is the philosophy of the looter and the thief.
“Intellectual Property,” please tell me where I can sign up for your society without need for pubicly funded storm levees, publicly funded defence forces, publicly funded banks of last resort, publicly funded law enforcement, which all involve the “many taking that which has been earned honestly by the few,” kthx.
IP, I think you’re putting the cart in front of the horse, at least in terms of how the notion of property came about. It came about _because_ it strengthened societies. It harnessed individual effort for the collective good, so that the collective could invade and colonise those societies that hadn’t developed the notion of property. Morality had nothing to do with it.
Ascribing morality after the fact to something that emerged from an evolutionary process amounts to committing the naturalistic fallacy.
I myself, to the extent that there is ethics involved, would prefer a system that maximises creativity/innovation in society, and hence capacity for growth. The notion of property as it exists now in most societies does a pretty good job of it, but could use some tweaking, as per above.
Other people might choose other criteria as the ultimate measure of “good” in a society — you certainly do. I’m willing to settle this through debate and democratic elections, of course. Should my country vote to become communist, say, where all property rights are owned collectively, I’d move away, because I do not think this kind of tweak would maximise productivity,
Aidan, no, I have not read Bas van Fraassen, in any language, but will look more into him when I have more time.
I understand your point Stefan. However, again it is based on the idea of society and the collective. You think that the concept of property (tweaked a little) is good because of the result it has on productivity, innovation and therefore its benefit to this thing called society. For me, that it benefits society is not a reason for it being moral, it is moral because it rewards the behaviour of individuals and families who are focussed on thinking and acting in a way that makes life possible through honest investment, work and trade without,the parasitic activity of begging, borrowing or stealing. The reason I know i am correct is that the former person can live without the parasite but the parasite cannot live without the former type of person because there would be no value to beg, borrow or steal if it was not created in the first place. Just because we call the parasite, “society” does not mean that it is any the less a parasite. Stefan, I sense a good man in you 😉 the reason that you would leave in the event of a communist takeover is because you are not a parasite but a rational person that wants to live based on code of values that rewards life and not death. Ofcourse you could not admit that in polite society.
IP, investment can’t happen in a modern society without regulation, dispute mediation and the possibility of enforcement. Trade happens through financial instruments such as money, which requires state stewardship. Society needs to protect itself from those who might not subscribe to the same notion of property.
The state is not a parasite, it is an enabler.
Were it not for the infrastructure provided to your honest investors by the state, they’d most likely be proud cave owners, or more likely losing their cave to somebody stronger.
Ofcourse, Stefan. I agree with you. I am not sure we are miles apart, there is no further need to debate. Your position and my position are perfectly respectable. Different shades of liberalism. Yours more European social democratic and mine more American in the sense of how the founding fathers envisaged the republic. Everything that I say depends on the Rule of Law and the State acting in its proper function as an enabler. However, it is when the State starts to take on more of the role of a redistributor of wealth that we move into the area that I spoke of. You know and I know that there are plenty of politicians that want power, not to defend individual property rights under the rule of law, but for its own sake.
Stefan
“Both extremes — unfettered appropriation/copying on one end, a clampdown on options on the other — undermine the role property has played in society — as a legal guarantor that effort begets reward. Both extremes stifle creativity.”
All three of your proposals attack conventional property rights, but do nothing to restrain ‘unfettered appropriation/copying’. Yet you agree that ‘both extremes stifle creativity’.
If your proposals are to maximize creativity, you need to propose something to also limit copy abuse. Why did you miss that?
Education is an insufficient constraint on copy abuse cuz you also have to deal with human nature. How do you propose to deal with human selfishness and greed?