Would Thomas Jefferson Steal a DVD? Part 2

Copyright is a relatively modern concept. It is part of a broader category of law known as intellectual property, which is defined as property rights over creations of the mind, including copyrights, patents, and trademarks. Some legal experts take issue with the term intellectual property because it lumps three different areas of law together, even though they were developed with separate legal principles. Richard Stallman, President of the Free Software Foundation and found of the GNU Project, distinguishes them as such: “Copyright law was designed to promote authorship and art, and covers the details of  price of giving the one who publishes an idea a temporary monopoly over it—a price that may be worth paying in some fields and not in others.  Trademark law, by contrast, was not intended to promote any particular way of acting, but simply to enable buyers to know what they are buying. Legislators under the influence of 'intellectual property', however, have turned it into a scheme that provides incentives for advertising.”[1]


Although the concept of owning creative or industrial material has been discussed since at least the 18^th century, the term “intellectual property” was not widely circulated until 1967 with the formation of the World Intellectual Property Organization (WIPO), and subsequently gained further familiarity through 1980’s Bayh-Dole Act. WIPO’s purpose is to “rewar[d] creativity, stimulat[e] innovation and contribut[e] to economic development while safeguarding the public interest.”[2] Its international presence has rendered it an organization of increasing importance, as internet technologies have made a global economy shrink in size and grow in ease of accessing material from across the world. The Bayh-Dole Act, also known as the University and Small Business Patent Procedures Act, allowed universities, small businesses, or non-profit institutions to receive preferred consideration for ownership of inventions over the U.S. government. This opened the door to commercial use of intellectual property rights. Prior evidence does exist of thought surrounding the concept of intellectual property, particularly in Europe where it was intended to be utilized “as an instrument of government censorship.”[3] A 1791 French law stated: “All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years.”[4] Yet, many were hesitant of this law. In 1818, a French liberal theorist by the name of Benjamin Constant distrusted the notion, arguing that “property which is called intellectual is only a matter of opinion.”[5] Several decades later, the first legal use of intellectual property in American law emerged in Davoll et al. v. Brown (1845). Justice Charles L. Woodbury summarized such property as “the labors of the mind, productions and interests as much a man's own, and as much the fruit of his honest industry, as the wheat he cultivates, or the flocks he rears.”[6] Although Woodbury’s description is rather poetic, it is more sentimental than substantial.

The origin of copyright law lies in economic theory as much as it does in legal postulations. In economist and philosopher F.A. Hayek’s well-cited case against socialism, he warns, “our civilization depends, not only for its origin but also for its preservation, on what can precisely be described only as the extended order of human cooperation, an order more commonly, if somewhat misleadingly, known as capitalism.”[7] Although copyright may appear to be a pure capitalistic venture, Hayek argues for the decentralization of knowledge and power. Modern copyright laws perform the opposite; they centralize ideas through economic power. Basic tenants of capitalism involve the ownership of private property, but intellectual property is a later development that many early economists were puzzled by. Hayek doubts “whether there exists a single great work of literature which we would not possess had the author been unable to obtain an exclusive copyright for it.”[8] Even Karl Marx, advocate of socialism, may have been weary of intellectual property. Marx’s fundamental problem with capitalism was that human beings became commodities through labor; monetary value was placed on actions, skills, and abilities rather than physical items. This danger is exacerbated by the concept of intellectual property, which renders the ideas and talents of the creator the same as commodities. Marx’s vision of a communist society, where cooperation and shared property were the law of the land, certainly would not include theories of intellectual ownership. His world would be one where all is in the public domain so to speak. If basic theories of capitalism and socialism do not support intellectual property, then where does this place our modern copyright laws in a philosophical context?

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[1] (Stallman 2006)

[2] (What is WIPO? 2008)

[3] ^{(Boldrin and Levine 2004, 33)}

[4] (A Brief History of the Patent Law of the United States 2003)

[5] (Constant 1988, 220)

[6] (Davoll et al. v. Brown 1845)

[7] (Hayek 1989, 6)

[8] (Ibid, 36)