As Stephan Kinsella points out in a recent Lew Rockwell podcast, there is a degree of confusion, even among libertarians, concerning the idea that creation of an intellectual work confers ownership of that work.
The confusion is really over whether creation confers ownership over a work and all its copies or likenesses.
Naturally, if an author writes a novel, they own that intellectual work. It is their natural intellectual property. However, if they manufacture and sell a copy of the novel as a book, then the purchaser becomes the owner of that book and the intellectual work that is the novel within it. The book is the purchaser’s material and intellectual property, just as the author’s retained original manuscript is the author’s material and intellectual property.
Naturally, an author cannot continue to own the property after they have sold it, whether it is material or intellectual. Conversely, sale of a copy doesn’t relinquish ownership of the original from which it was copied.
However, thanks to the transferable privilege of copyright, the state grants a monopoly over the manufacture of copies to the copyright holder – assuming they are wealthy enough to prosecute its enforcement (generally only large publishing corporations). The author is the initial holder of the copyright to a work.
Nevertheless, even in the presence of copyright, purchasers of books still own the material and intellectual property they represent. They’ve simply had their rightful liberty to manufacture copies suspended in order to reserve this for those privileged by copyright.
This unnatural monopoly confuses some to believe that intellectual property is about an author or creator owning all likenesses of their intellectual works, that simply by being the author they are rightfully able to control the use of their original work and its likenesses or copies wherever they may be, even though they do not own the physical medium in which the intellectual work is fixed. This may well be an attractive idea (and lucrative as far as it can be enforced), but it is unnatural as it presumes an evidently supernatural power of the author, that they must have a reach beyond their own private domain and not only into the global public domain, but also into the private domains of others, far beyond their own neighbourhood and onto the other side of the planet.
An individual self-evidently has a natural control over their private domain, and as this by definition excludes the public, such control cannot impact the liberty of the public in their own affairs. However, to claim control over one’s intellectual work even after one has released it from one’s private domain to publish or privately sell, is a control that necessarily requires a corresponding constraint over others, an unethical suspension of the public’s natural liberty to communicate and build upon the culture they individually and collectively possess.
Thus creation confers ownership of an intellectual work, but it doesn’t spookily confer ownership over all its copies. Each copy exists independently (copyright notwithstanding).
So, when you hear some argue that ‘creation doesn’t confer ownership’, it should really be qualified as “Creation doesn’t confer ownership of all copies and/or likenesses of an intellectual work”.
Putting it simply:
- Creation confers ownership
- Purchase(exchange) confers ownership
Both creation and purchase are mechanisms for introducing property into one’s private domain and obtaining ownership thereof.
This applies to intellectual property as much as material property.
If someone creates/manufactures new property (an ‘original’ work or a copy of another item of their property – whether they ‘originated’ that or not) and sells it, the purchaser owns that property. The vendor’s natural rights over their property don’t interfere with what is now the purchaser’s property, nor do the purchaser’s natural rights interfere with the vendor’s- naturally.
Unfortunately, privileges given to filers of ‘novel’ mechanisms and fixers of ‘original’ works, most certainly do interfere with everyone’s natural property rights.
Thus, if people insist on misapplying the term ‘right’ to these privileges, then as Stephan demonstrates, we have to term them unnatural or ‘phony’ rights, thus “Copyright is a phony right”.
However, intellectual property remains natural. The creation of intellectual works confers their ownership to their creator, and the owner of such intellectual property, as with any owner of property, may transfer ownership by physically transferring the property. It is only the privileges pertaining to IP that are unnatural.
It is possible that some IP maximalists who’d like to pretend their privileges aren’t phony rights, but are actually natural, would go further than the legislated privileges they already enjoy and claim that creation/discovery confers ownership over all likenesses. This is plainly supernatural (only a deity or his church could be so bold), and its enforcement is beyond even the superhuman power of the state to achieve – as even some IP maximalists are finally beginning to recognise.
This is why I reject the over simplistic statement that creation does not confer ownership of an intellectual work. It does, as any author or artist instinctively knows. To insist otherwise cannot endear artists to the cause of cultural freedom, where artists are free to exchange and build upon culture, and free to exchange the value of their labour, their intellectual property, in a free market. Authors, artists, inventors, all own the work they create – they always have done and always will.
However, it remains a distinct truism that creation doesn’t confer ownership over all copies and likenesses. In fact, nothing natural can confer ownership over all copies and likenesses, except legitimate possession (one continues to own stolen IP despite it being within a thief’s illegitimate possession). Thus if you wish to own all prints of a watercolour you created then you must go out, repurchase and repossess them from whoever currently owns them. This cannot be done by holy fiat.
In wondering if there are any cases in which even creation fails to confer ownership of an intellectual work, Bill Stepp proposes the obscure thought experiment of whether a burglar can claim ownership of a work they produce in someone else’s private domain using someone else’s materials.
If you think of private domains as bubbles, and that bubbles may exist within others, then the burglar has a tighter private domain about his body even as he invades the looser private domain of another’s house.
A burglar owns the IP they create even in someone else’s private domain. They may not own the materials, and may in the course of their activities cause material damage, but burglary, material theft/damage, has no bearing upon the burglar’s ownership of their IP.
For example, an itinerant poet may burgle into someone’s beach villa, and whilst lazing upon its sunlit veranda sipping a G&T they’ve stolen from the fridge, scribble down a wondrous poem upon some notepaper they’d found in a desk drawer. That poem is nevertheless theirs, their intellectual property, even whilst they violate the material property rights of the villa’s owner. The owners may rightfully claim invasion of privacy, breaking & entry, theft/damage/destruction of notepaper, etc. But, the poem is not forfeit (however valuable), although theoretically, as one of the poet’s assets they may end up needing to realise its value in order to make restitution for their crimes. By way of comparison, just as the poet may steal chewing gum to repair a hole in his old cabriolet’s roof, his car is not automatically forfeit by dint of its proximity or contagion. Theft does not sanction theft, only an arbitrated remedy and failing that, rehabilitation. Another way of looking at it is that if the poet had instead been invited in from the beach by the resident owners of the villa, and had created the poem, it would still have been his IP despite not being his villa, ink or paper.
In conclusion, whilst state granted monopolies are alien to liberty and libertarianism, intellectual property is quite natural (as most authors and inventors recognise). It is only the state granted monopolies of copyright and patent that privilege filers/fixers (‘creators’) of IP that are unnatural.
As for creation, it certainly confers ownership over what one has created, but that ownership does not naturally continue after one has parted with what one has created, e.g. via abandonment, gift, or exchange. Thus one cannot sell the material of a physical work whilst retaining ownership of the intellectual work within it (since parting with the medium parts with the expression). More importantly, creation cannot confer ownership through similarity whether by likeness or through copying. Creating/inventing a novel knot cannot confer ownership over all indistinguishably similar knots and their application, but this doesn’t preclude owning the knots and the secrets of them that are in one’s possession. Purchasers of such secret knots similarly own them.
I hope this reduces any confusion libertarians may have when attempting to understand natural intellectual property and how ownership in intellectual work naturally propagates, and is interfered with by unnatural intellectual property privileges such as patent and copyright.
Just because a corporate website declares a ‘privacy policy’, that should not lead you to believe that your privacy is or can be at all affected by that policy, certainly not to believe that your privacy can be extended into their data-centre.
It should be recognised that your privacy ends at the boundary of your personal space, home and possessions. When you confide your personal data to another person or a corporation it’s governed by very little, certainly not you. Their misnamed ‘
privacypolicy’ (more properly termed a ‘discretion policy’) just lets you know how indiscreet to expect them to be as a matter of their policy, as opposed to their practice (very indiscreet).Corporations could be regulated to be so discreet as to attempt to simulate an extension of your privacy, but as we have seen with Wikileaks even highly secretive and unscrupulous superpowers can fail to silence their staff, just as they fail to torture the truth from their suspects. Do not expect a corporation to achieve what a totalitarian state cannot, however steep the fines for regulatory non-compliance.
What the likes of Facebook should teach us is not that privacy has ended, but that they cannot not provide or extend it except as a con. You cannot outsource privacy. It doesn’t work like that. There is no power on earth that can constrain the further dissemination of information that has been disclosed. Sticking a magic symbol © on it doesn’t work either. That information is of a personal nature may increase your desire that your doctor does not disclose it, but it his discretion, not your right to privacy, that determines its non-disclosure (irrespective of professional repercussions). This is natural law. We can make unnatural laws and privileges to the contrary, but that is unethical and futile folly.
Human beings have freedom of speech. It is a fact of nature. You cannot recognise that and covet the power to silence others, those you’d rather not have that freedom.
Here it is in bullets:
The Right
0) Privacy is the natural right to exclude others from a private domain.
1) As a natural right, privacy is unalienable and to be protected by government for all individuals equally.
2) A government may unethically enact laws that abridge natural rights such as privacy.
The Confidence
3) If I am a human being you confide in:
4) If I am a corporation you confide in:
The Conclusion
5) You cannot both include a human being in your private affairs AND exclude them (or constrain them to exclude others). You must trust in their discretion.
6) Although a corporation is a legal entity, and having no rights can be legally bound to silence or non-disclosure, it cannot be trusted to observe such a binding constraint, especially given that its human staff cannot be so bound.
7) One cannot constrain an individual’s communication, nor hope to constrain a corporation’s.
8) One should only prohibit a communication, and have some expectation of achieving remedy, where it violates an individual’s rights, e.g. where it:
9) So called ‘privacy policies’, except where they covenant not to compromise privacy through privilege, are generally redundant and misleading, if not dishonest. They’d be better termed ‘personal data processing and communications policies’ or ‘assurances of discretion’.
10) The suggestion by a ‘privacy policy’ that an individual’s private domain can be effectively extended into the purview of a corporation is an abhorrent con.
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1 An author’s exclusive right to their writings derives from the right to privacy and is their right to exclude those not privy from access to, distribution, copying, or communication of them. Naturally, those made privy by the author have equal rights to liberty and privacy, and so, aside from authorship and ownership of any underlying material objects, the same exclusive right to the writings, and the same liberty to disseminate them. NB This shouldn’t be confused with copyright, which is a privilege derogating the right to copy from others’ liberty in order to benefit the holder with a means of enforcing a reproduction monopoly. When people say “Copyright is the right to exclude others from making copies” they are using ‘right’ as a contraction of ‘legislatively created right’ or ‘legal right’, i.e. a privilege – granted and established by Queen Anne in 1709.