No one is so naive as to think there’s something intellectual or creative about ‘intellectual property rights’. They protect even the worst Britney Spears wannabe from Britney-Spears-wannabe wannabes. Music company lawyers may talk about protecting an ‘artist’s works’ against debasement or corruption, but the ‘protection’ of intellectual property is also a licence to debase and corrupt. For those who don’t posses them, intellectual property rights do indeed protect the ‘works’ against debasement, or for that matter ennoblement. Those that do possess the rights to a work – not necessarily the artists themselves – can debase and corrupt it as much as they like. I’m pretty sure I’ve heard a composition by Little Walter, one of the three or four true giants of the blues, used to advertise tampons. Whoever came up with that had no doubt intellectual property in the music. On the other hand, the composition techniques central to classic blues, which involve extensive borrowing from others, now count as piratical. Today, Robert Johnson or Blind Lemon Jefferson would be looking at fines or lawsuits for their work.
Most debates on intellectual property focus on its limits, which have been stretched as far as lobbyists can stretch them. Few people now remember that the original notion of music or literary ‘piracy’ was copying for resale: a ‘pirated edition’ was not just any copy of a protected work, but copies printed for commercial use. Today, every hall-monitor type has bought into the notion that non-commercial copying is ‘theft’, no matter how often commentators remark that, when theft occurs, the victim doesn’t normally retain what is stolen. And a whole generation of suckers is learning that, when they buy a CD, they aren’t buying those tracks to do as they please with – heavens no! – but a licence to use those tracks, one which does not extend to such enormities as giving music away.
Sharing music is not theft or piracy. Is it harmful? Certainly it is, to some people. So are many impeccably legal practices, like automating production lines, or sharing clothes or cars or apartments, or amateur entertainment, or do-it-yourself home repair. Any of these activities can destroy someone’s livelihood, though none so much as free competition itself: this great god of business ideologues of course very frequently eliminates the jobs at less competitive firms. Those laid off are quite often left homeless and destitute. If harming livelihood is going to be a justification for restricting the use of what you possess, the restrictions will soon become intolerable.
In addition one might ask: are the music and film industries really contributing something vital to our intellect or civilization these days? If so, how exactly is this contribution to be managed?
Since so many products of the music industry have nothing much to do with art, blanket protection of commercial musicians would be a pretty inefficient way to protect art or artists. And if these non-artists are essentially in business, and technology eliminates most of their profits, well, say hello to market forces.
Protecting every last penny Britney might possibly make does not do a whole hell of a lot for the many acknowledged masters of popular music now living in poverty. They were ripped off by the very industry now so desperate to protect artistic achievement. Protecting genuine artists, one would think, is most efficiently achieved by direct rewards for artistic merit, judged by their peers or by whatever other procedure seems to make sense. And if someone comes along to proclaim that none of us can judge artistic merit, what’s all the fuss about? How do we know that any music is more than a merely commercial product, whose value has no more claim to be protected by technology than horses and buggies?
There are more basic questions as well. Odd, with all the endless talk of technology bringing ‘new paradigms’, that ‘paradigm’ which most obviously needs renewal is never discussed – that of property itself. The current unrepentant popularity of filesharing indicates that the alleged property-rights of rock stars and music companies no longer command much respect. On the other hand, there is some concern that legitimate holders of these rights, artists who have not become corporate cash cows, are poorly served. Technology is the catalyst rather than the cause of these reactions. The cause is the conflict between property rights as currently conceived and the ideas underlying those rights.
Many people feel that current systems of property rights, though imperfect, are nevertheless essential; without them civilization itself would collapse. But these systems, as the mp3 controversy indicates, get into trouble when they exceed by too much the justifications that underlie them. What underlies them cannot be a body of law: it should be obvious by now that, since laws are often unjust, the mere fact that something is law provides no even moderately compelling reason to respect it. It can be right or wrong to obey the law, and to make it right, the law must have some moral foundation – even if the foundations of morality itself are debatable. Only a law widely perceived as right can have some claim to be respected.
What then are the moral principles that underlie property? They are not the laws of contract or transfer, because these presuppose rather than create a property in things: someone must already own something for it to figure in contractual arrangements. What is it, then, that would entitle someone to have something in the first place?
This question has attracted remarkably few answers. There is the radical theory that we have rights only to what we truly need. This theory is often thought utopian, or dangerous to the social order, and therefore rejected. Suppose for the sake of argument that this rejection is justified. Still, the foundations of property will be a lot shakier than usually supposed.
Really, theorists present only two reasons – other than contractual or ‘social fabric’ reasons – why anyone morally ought to acquire a property in anything, and the two reasons nearly converge into one. I can deserve something through my merit, or because I have worked on it. Sometimes merit seems to predominate, which is why more talented athletes or musicians or engineers are thought to deserve more money than their equally hard-working but less talented counterparts. Sometimes work seems to predominate, as when everyone on an assembly line is paid the same even if the more experienced workers have more skills. Often we’re unsure about the relative weights of merit and work.
Both the merit and the work justifications of property involve special cases of the broad notion of desert, or what you have coming to you. They make desert a function of some valuable efforts – valuable because on the one hand they are skilled or creative or daring, on the other because they are diligent and persistent. When John Locke justified property because someone had ‘mixed his labour’ with the soil, the idea was that this person deserved ‘the fruits of his efforts’, which suggests both that the work and the skills involved had some value in some way transferred to their objects. (Locke also seemed to think that my property rights should not deprive others of what they need, but that’s another story). So far, so good, but there is an elephant in the room. Desert itself is not infinite. It has limits.
There are at least two ways of expressing these limits, in money and in time. We use neither, because our notions of property, contrary to all logic, ignore these limits. We allow, for example, labor to give us title to land forever, no matter how great a value that land may come to have. Consider homesteading schemes where working the soil gives you title to the land: my labour of, say, several months may reap a multimillion dollar ‘reward’ for my descendants. Similarly, my talent in composing a song may get a payback in the millions. Moreover there is no proportion here. Someone whose labour or talent is equal to mine may eventually, due to the vagaries of the market, get far less. Not every homesteader’s land eventually becomes a key parcel in some huge urban development, and not every great song gets promoted into a hit. This lack of proportion is especially glaring today, when no one would claim that the earnings of a song correspond to either the work that went into it, or its merit. Property is therefore all but detached from its foundations.
Theories of property haven’t addressed this problem largely because they are rooted in an ancient concern, how to establish a property right over unoccupied land. This is a question remote from the concerns of contemporary consumers, as were the older intellectual property fights about copyright and patent. But the mp3 revolution raised new concerns: what? I suddenly can’t share the music collection I built up over the years? No one ever said I couldn’t give away my clothes or my books or my car. A system of property supposedly enshrining the ‘right to be selfish’ now goes further; it makes being unselfish a crime.
If this doesn’t seem to make sense, it’s because property rights now extend too far beyond their foundations. Yes, Metallica certainly does have a property right in its music, a right proportionate to some combination of the work they put into its composition, and the merit or skill attached to that work. But this work and merit does not entitle them to every penny that can be made off the work, much less to every penny that can be made if they go after file-sharers. How much does the band deserve for a single famous track? A good deal less, I’d imagine, than Little Walter deserved for ‘Juke’, and probably not a lot more than what the really good bar bands in your city deserve for their best numbers. Whatever the amount, it needs to be specified, and once that money is made, Metallica no longer has any property right whatever to that track. This approach simply expresses in dollar terms something like what copyright law expresses in terms of time when it makes the property in a song expire after a certain number of years. The problem is that, in the case of music, copyright should be tied to earnings as well. Earnings can outstrip desert long before current copyright properties expire.
Of course it is impractical to assess each track of each artist on its merits, and to determine the appropriate extent of property rights on the basis of those merits. But it’s also unnecessary. Proportioning property rights to merit is no more or less difficult than proportioning wages to work, or crime to punishment, or welfare to welfare recipients, or taxes to incomes. In all these cases, societies use rules of thumb, and makes exceptions in individual cases. That’s how a society would devise appropriate rules for ‘intellectual’ property. A song should be someone’s property for a standard period of time or until a certain amount of money is made from it, whichever comes first. In cases of exceptional merit, these limits could be extended, and this too can involve both rules of thumb and judgement of particular cases. Maybe the great R&B artists who got ripped off by their record companies would get extended copyright; Britney probably wouldn’t.
These suggestions don’t describe a solution but they prepare the ground for one. A society might decide that every artist really does deserve exactly what we have in the US today: a property in his productions lasting seventy years after his death. But society’s decisions aren’t necessarily right, and individuals might correctly believe that other arrangements would more closely correspond to the appropriate rewards for artistic effort and merit. For example, one might suppose that, by default, no one was entitled to more than $100,000 for a song, which should become public domain once this mark was passed.
As for artists who don’t have big hits, their recordings might be protected for much less time than now, say two years, unless some standards body decided , in a particular case, to extend that period. Protection schemes might be replaced by a musicians’ association which paid certain categories of artists for their work. These funds might be sustained by the association itself, by a regular government budget allocation, by a media tax, or by some combination of these alternatives. But one thing would change for certain: no longer would those who challenged current notions of intellectual property be stigmatized as ‘thieves’.
Whatever the law, whatever the social consensus, there just isn’t any way some third party has a moral right to make money out of Little Walter tampon ads. If the law says otherwise, the law is an ass.
MICHAEL NEUMANN is a professor of philosophy at Trent University in Ontario, Canada. Professor Neumann’s views are not to be taken as those of his university. His book What’s Left: Radical Politics and the Radical Psyche has just been republished by Broadview Press. He contributed the essay, “What is Anti-Semitism”, to CounterPunch’s book, The Politics of Anti-Semitism. In September 2005, CounterPunch/AK Press will publish Neumann’s new book, The Case Against Israel. He can be reached at: firstname.lastname@example.org.