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.

Ahmed Abdel Latif responds to Lessig wondering why WIPO is unable to succeed in its objective of global copyright reform, and whether the remaining need for such can be reconciled with the zealously prosecuted ‘war on piracy’.

How do you tell a child that there is no way of saving the sandcastle they’ve laboured long and hard over from the approaching tide?

Question the assumptions, even the language, and you might get closer to a truer understanding, and realise that a war against piracy is a war against liberty, a war against human nature and natural law.

This is a war that Canute would wage against the tide. The inexorable tide in turn, takes the liberty of eroding the fiat sandcastles of mercantile privilege.

There’s a reason rights holders are so called. These aren’t rights they are born with but rights annulled in all the inhabitants, to be held by a few. In 1709 Queen Anne derogated the right to copy from the individual’s right to liberty, and it is this that publishing corporations purport to hold. But of course, they do not. It is inalienable, and all the privileged hold is the power to persecute the disobedient.

There is no power on Earth that can subjugate the people to refrain from communicating, sharing, developing, copying, learning, or progressing, in order that monopolies may persist unchallenged. Giving them pretexts may smooth the passage of their legislation, but they don’t actually make monopolies do the opposite of what they do. If you want progress or learning you do not put a brake on it – you only do that if you wish to quell or tax an activity.

The only reform that fixes copyright and eliminates piracy is its repeal.

In “Your personal data is not worth anywhere near what you think it’s worth” Jerry Neumann ends with “I spent several years of my life trying to build a business that lets people take control of their own data while still leaving a way for marketers to find them. I believe in privacy”

Privacy is not something to be believed in. It has to be self-evident.

If we imagine privacy is the power to control what others do with the ‘personal’ data they collect from their transactions with us, then lacking this power innately, it cannot be obtained – unless the state grants us a privilege to prosecute those who fail to believe we have this power.

Privacy is the right to keep others excluded from that which we have the innate and physical power to exclude others from, e.g. the space about our person, the interior of our walled house, the space about us & those we are having a (private) discussion with, the interior of our physically bounded messages (envelopes), etc. We have no power to buy some cigarettes from someone and prohibit them from revealing this purchase to others (they will be discrete – if they are an individual with a reputation to worry about).

There are still others spending years of their lives trying to perpetuate businesses that rely upon people being able to control the distribution and use of their intellectual works – or rather an 18th century privilege that lets people prosecute those who fail to believe they have this power of control.

We’re not going to get anywhere if we attempt to build things based upon the powers of control we believe we have (or believe we should have), as opposed to the powers of control we do have.

On the Internet there are about two things we control that are relevant: our speech (inalienable) and our property (alienable). That means we can publish what we’re interested in, what we have, and contract to exchange what we have for what we want. This is ample power for VRM (as it has been for business between people since time immemorial).

We can neither surrender nor exchange our freedom of speech concerning our interactions or transactions, nor can we claim the power to constrain others’ freedom of speech respectively. Nevertheless, the faithful will continue to believe otherwise, that people do have the power to “take control of their own data”. If this includes you, read the above again.