Acrewoods Library

Introduction

Litman sets copyright up as a limited right of management: "If, in contrast, the goal of copyright law is to place all feasible control over works of authorship firmly in the hands of copyright owners, new digital technology offers us the opportunity for the first time to come very close to perfecting the system" (p.14, my emphasis).

She also sets it up as a public bargin, but claims that "copyright is now seen as a tool for copyright owners to extract all the potential commercial value from works of authorship" (p.14, my emphasis).

Copyright basics

A useful introduction to US copyright law...

The art of making copyright laws

Opens with "copyright lawyers are a particularly myopic breed of human beings" :-)

"Copyright laws become obsolete when technology renders the assumptions on which they were based outmoded." It's interesting to match this up against the first quote I cite in these notes, and consider the extent to which she is saying technology should guide policy and vice versa. She continues,

"so long as the chief source of revenue for popular songs was the sale of sheet music, composers fared well under the system. Although public performances of music might generate no royalties, musicians and singers performing the songs would need (purchased) sheet music in order to perform, so composers shared indirectly in the performance revenues. Once it became possible to record a musical performance on a piano roll or phonograph and to make and sell hundreds of those, or to broadcast performances over the radio, however, composers could be excluded from the additional proceeds generated by the recording or broadcast." (pp.22-23)

So the law has changed to match the challenges and opportunities posed by technology. But there has also been another force behind changes: when certain interest groups find copyright law blocks their practices, such as librarians not being able to make photocopies, then those groups specify privileges and exceptions, which pass into law. So "as the entertainment and information markets have gotten more complicated, the copyright law has gotten longer, more specific, and harder to understand." (pp.24-25)

Similar to the argument advanced by Lethem about compensable units, Litman describes how computers ostensibly make "actionable copies" just by operating. Because copyright owners have the right to manage (and so collect revenue from) every single copy made, copyright law in effect extends the author's control "over the consumption of their works" in a way that was never true of, say, books, which you were able to read as many times as you like and in any way (pp.26-28).

Unsurprisingly, then, "members of the general public commonly find copyright rules implausible, and simply disbelieve them" (p.29). The dream of the DRM-brigade is that "people won't have to know what the rules are because it will be impossible for most of them to break them" (p.30).

A thought experiment

Most copyright legislation (in the US) was drafted by industry representatives, who `where chielf concerned about their interaction with other copyright-intensive businesses and institutions'. So legislation talks about their concerns, with `very few words addressing the behaviour of a consumer' (p.70).

If copyright were to be seen as equivalent to physical property then it would be taught in the earliest stages of education, but we can't do this because no school children nor even teachers could understand it (p.72).

The 1909 Copyright Act (US) was twelve pages long. The 1976 Copyright Act was sixty-one pages long. By 1995 various amendments took it up to 142 pages, and by 2001 it was 205 pages long!

Choosing metaphors

The chapter opens with an awful quote from Jack Valenti, showing that he is incapable of conceiving of any public value that is supported by public or civic minded private resources. He suggests that if works are left in the public domain then nobody will `invest in funds to renovate and nourish its future life' because `no one owns it' and so there is no `consumer benefit' (p.77).

The original metaphor for copyright was one of a bargain; copyright was designed to be full of holes to give proper balance (pp.78-79).

In `the last thirty years' the bargain metaphor has been replaced by a system of economic analysis, casting copyright as an economic incentive for the creation and distribution of original works. It posits a direct relationship between the extent of copyright protection and the quantity of production (pp.79-80).

Today the metaphor is one of control, we talk about the copyright owner being entitled to control their work. Thus we can no longer talk about a consumer's right to do what they want with their legitimately purchased work, and owners have an unprecedented opportunity to attack and control whatever they perceive to be an abuse of their property, using the law, media, technology, education systems, and so on (pp.80-82).

This change is reflected in discourse around fair use in the US. It was originally seen as appropriate in situations where the owner would be unlikely to authorise particular uses such as parody and critique, which Prof. Alan Latman described as `enforced consent'. Recently reformulations have sought to recast it as `implied assent', and so extremists can claim that fair use is antiquated because technology make implied assent irrelevant -- the owner can control assent in each case (p.84).

Incidentally, enforced consent completely violates self-ownership, whilst the extreme argument protects it perfectly.

This `evolution in metaphors conceals an immense sleight of hand' (p.86).

Copyright lawyers set out to colonize cyberspace

`What happened next was a failure of imagination' (p.89).

In the early 1990s the internet was promoted to policy makers in the US as the Information Superhighway, essentially conceived as a large quantity of content channels similar to cable TV. Keen to protect their dominance in this market, policy makers set out to ensure that the private sector could develop enough content to attract subscribers, equipment manufacturers and investment (p.90).

Clinton's administration set-up the Information Infrastructure Task Force to formulate policy in this area, which maintained extensive links with private sector copyright lobbyists. The key working group was led, and dominated, by Bruce Lehman (p.90).

In fact, most of the people in the working group had no experience of the internet, and so continued to work towards the original vision of content channels rather than responding to the flourishing medium they were looking to regulate (p.94).

The Lehman Working Group issued a Green Paper predicating its legal analysis on a revolutionary assertion: that every time someone reads a work into a computer's RAM one reproduces that work, which invokes copyright law (p.91).

An example: a customer service manager quit MAI Systems and went to work for a business that maintained and repaired computer systems designed by other companies, including MAI. MAI sued him and won, on the grounds that he was wilfully violating the copyright of his previous employer every time he or his new employer turned on a computer, loading MAI's software into the RAM (p.91)!

The White Paper issued by the working group concluded that copyright laws were `fundamentally adequate an effective', and took on the task of interpreting current law to resolve any ambiguities introduced by the new technology. But the result would `strike anybody but a copyright lawyer as extravagant' (pp.94-95).

Creation and incentives

The working group's White Paper alleged that authors and publishers would not make their work available at all if they couldn't control them:

`Creators and other owners of intellectual property rights will not be willing to put their interests at risk if appropriate systems -- both in the U.S. and internationally -- are not in place to permit them to set and enforce the terms and conditions under which their works are made available' (p.101, my emphasis).

Litman rubbishes this by citing numerous examples of `traditional' publishers like CNN and The New York Times making their content available on the internet before any changes to the law (p.102), although it's possible that they anticipated a strengthened legal environment and only published with the possibility of some control in mind.

She is more convincing on arguing that the value of much of the internet is that the whole is greater than the sum of its parts, and that many works have value `precisely because they're collaborative', citing the example of the `great deal of common wisdom' that emerges from parents in the Usenet newsgroup misc.kids (social thinking!) (p.103).

She further argues that many people make information freely available on the internet because they enjoy sharing it and because the internet makes collaboration easy (p.104).

A weaker argument again -- copyright was needed as an incentive for publishers and distributors, not so much creators, and since distribution costs are near-zero on the internet copyright isn't so relevant (pp.104-105). But clearly physical forms of publishing are still important, and the proceeds do pay many creators to work full or part-time, covering costs that might otherwise be difficult to amass.

`History teaches [oh dear] that whenever we have discovered or enacted a copyright exception, an industry has grown up within its shelter. Player piano rolls became ubiquitous after courts rules that they did not infringe the copyright in the underlying musical compositions; phonograph records superseded both piano rolls and sheet music with the aid of the compulsory license for mechanical reproductions; the jukebox industry arose to take advantage of the copyright exemption accorded to the reproduction or rendition of a musical composition by or upon coin-operated machines... the videotape rental business swept the nation shielded from copyright liability by the first sale doctrine' (p.106).

An analysis of the public domain in English, American and French law to establish whether or not the romantic version of the public domain as the legal default, against which the marauding forces of copyright fight, is realistic.

The basic message with her analysis of the English legal tradition is that it is ambiguous. Whilst the Statute of Anne and subsequent laws made it clear that copyright was limited, and that works otherwise entered the public domain, there was a huge amount of debate and legal precedent suggesting that a perpetual private property right in creative works is as likely a default.

However there are a few major flaws with her argument that undermine her efforts to muddy the waters.

First, Ginsburg immediately limits the scope of her enquiry to publishing "because the printing press gave rise to the conditions to which copyright and its predecessor privileges responded" (p.3). But this limits her enquiry to a subset of cultural practices, and misrepresents the nature of publication by tying it to a particular legal development. Really disclosure and publication in their broadest sense came with the earliest forms of human communication!

Ginsburg later discussed the "understandable economic impetus" behind various extensions to copyright (p.12). Whilst she certainly doesn't explicitly suggest that this is the only rationale for copyright, her argument supports those who make creating and supporting markets its core rationale.

There's an interesting look at 19th arguments against copyright in performances and adaptations, the lack of sufficient genius, creativity or artistic difference were cited as reasons against extending copyright to these works (p.12). But then a defendant in a case where an author wished to prevent a performance of a play suggested that "the combined effort of poetry, scenery and acting... are not produced by the author of the work, and the combined effect is just as much a new production" (p.13), and thus fair game since at the time transformative fair use was outside the scope of copyright. Of course if sufficient genius, creativity or artistic difference is required either to except from or be tangled by copyright, then this could become extremely subjective. Do the members of boy bands deserve any ownership rights, or would weak rights be afforded to the composers & choreographers and none to the disposable performers, or perhaps they require a corporate right in the work?

A great quote from Lord Camden, although Ginsburg points out that it is often "carefully excerpted" and was basically "retrograde even in its day" because of his attitude towards money evident in the second section (pp.14-15):

"If there be anything in the world common to all mankind, science and learning are in their nature publici juris, and they ought to be as free and general as air or water. They forget their Creator, as well as their fellow creatures, who wish to monopolize his noblest gifts and greatest benefits. Why did we enter into society at all, but to enlighten one another’s minds, and improve our faculties, for the common welfare of the species? Those great men, those favoured mortals, those sublime spirits, who share that ray of divinity which we call genius, are intrusted by Providence with the delegated power of imparting to their fellow-creatures that instruction which heaven meant for universal benefit; they must not be niggards to the world, or hoard up for themselves the common stock.

"Glory is the reward of science, and those who deserve it, scorn all meaner views: I speak not of the scribblers for bread, who tease the press with their wretched productions; fourteen years is too long a privilege for their perishable trash. It was not for gain that Bacon, Newton, Milton, Locke, instructed and delighted the world; it would be unworthy of such men to traffic with a dirty bookseller for so much a sheet of letter press."

French legal discussions and precedent

The first law for dramatists' public performance rights was drafted by Le Chapelier in 1791. He stated that (p.17, emphasis added):

"The most sacred, the most legitimate, the most indisputable, and if I may say so, the most personal of all properties is the work which is the fruit of a writer’s thoughts."

Of course "personal" could be understood in many different ways, for example by appealing to the anarchist's distinction between personal and private property. He continues (p.17, emphasis added):

"But it is a property of a different kind from all the other properties. [Once the author has disclosed the work to the public] the writer has affiliated the public with his property, or rather has fully transmitted his property to the public. However, because it is extremely just that men who cultivate the domain of ideas be able to draw some fruits of their labours, it is necessary that, during their whole lives and some years after their deaths, no one may, without their consent, dispose of the product of their genius. But also, after the appointed period, the public’s property begins, and everyone should be able to print and publish the works that have contributed to enlighten the human spirit."

The key word being "some". Affiliation and deserving some reward come a long way shy of being a justification for the copyright laws in place today, and indeed is a weak argument for having full control of "the product of their genius". Ginsburg notes, however, that in general "authors' labours justify their temporary property rights, but the public's more fundamental claims form an ever-present background" (p.17).

In response to this, however, the 1793 Report of Lakanal claims that "productions of genius" are "the least contestable" form of property that "cannot harm republican equality, nor offend liberty". Lakanal claims that it makes no sense for the author's right to disappear at the very moment at which he exercises it. Of course if the rights are disclosure and personal property then it makes perfect sense that these rights disappear the moment the work is put into the public sphere. The background to the "least contestable" quote, interestingly, is that "propriete publique" was a republican ideal but rewarding all genius equally rather than limiting reward to works approved by the ancien regime also appealed to republicans (pp.18-19).

The case law in formalities required to gain property rights evinces no clear picture as to the boundary between the author's sphere and the public's, but the subject matter and the scope of the rights is unambiguously in favour of strong authorial rights in all kinds of writings, whilst the duration, after a debate familiar to England, was firmly curtailed in positive law (p.19).

There are many different conceptions of the public domain:

A - information artefacts wholly free from IPRs (pp.109-111)
* excludes information, ideas, principles and laws of nature (hence *artefacts*)

B - IP-free information resources (pp.111-113)
* includes artefacts and ideas, principles, etc.
* most common definition
* Justice Brandeis' famous dissent in International News Service vc. Associated Press: "The general rule of law is, that the noblest of human productions - knowlege, truths ascertained, conceptions and ideas - become , after voluntary communication to others, free as the air to common use".

C - the constitutionally protected PD (pp.1113-116)
* In the US, the reason for excluding databases contradicts the labour argument for IPRs, cf. Locke - "works lack the creativity that is the sine qua non of constitutional authorship"

D - Privatisable information resources (pp.116-120)
* includes business methods, trademarks and personae, which are initially in a kind of public domain but may be appropriated
* on publicity rights - "noncelebrities generally do not have publicity rights because they have not invested time, money and energy in the creation of a commercially valuable persona" (p.119)
* pub rights closely match arguments from self-ownership, though don't fully address the extension of the self into the public sphere in the form of created information artefacts of course

E - Broadly usable information resources (pp.121-122)
* Benkler: "the range of uses an individual is privileged to make absent individual facts"
* encompassing e.g. time shifting, quotations and other fair use exceptions
* Samuelson interprets this as meaning "those information resources that are freely usable and those as to which an owner can exercise exclusive rights", though it seems more accurate to talk of "unrestricted information uses as to thoes an owner can exercise exclusive rights to prevent", which captures fair use better
* used to promote "a more public-regarding politics of intellectual property"

F - Contractually constructed information commons (pp.123-127)
* basically copyleft, echoing Benkler's definition but also encompassing extra rights granted by authors to the public
* "because they promote openness and widespread uses, these information resources are regarded by some commentators to be functionally similar enough to IP-free public domain materials to be included in the definition of this term" (p.124)
* also mentions Reichman and Uhlir who want a contractually constructed information commons for scientific research, to claw back the academic tradition from privatisation (useful citation to back up Himanen... 124-127

G - A status conferring a presumptive right of creative appropriation (pp.127-129)
* basically transformative fair use
* to make the public domain more dynamic and robust, rather than being a sanctuary, Prof. David Lange conceives of "a status that arises from the exercise of the creative imagination... confer[ing] [on authors] entitlements, privileges and immunities" to appropriate other works in the course of creating new ones
* Lange sees it as an affirmative right, rather than a defence in court cf. fair use, overriding any economic or reputation impact
* Lange was concerned about an extensive right of publicity hampering artistic freedom, the conflict of the two `rights' creating opportunities for a kind of censorship

H - A cultural landscape (pp.129-130)
* Prof Julie Cohen suggests that the proper approach to defining the PD is to pay "careful attention to creativity as a social phenomenon manifested through creative practice", rather than deriving the definition from legal traditions or the creative industries' market systems
* Similar to Lange, Cohen sees this approach as requiring that creators have "baseline rights [to engage in] unplanned, fortuitous access and opportunistic borrowing" - "if we as a society want to facilitate the development of artistic culture, copyright doctrine should recognise rights of access to the common in culture to a far greater extend than it currently does"

I - A communicative sphere (pp.130-132)
* Prof Michael Birnhack says the PD plays "a crucial role in personal self-development, learning, experiencing, imagining, speaking with others, creating new works for the benefit of ourselves and wider circles, starting from the immediate intelocutor and up to the entire community" -- closest to acknowledging the range of benefits of cultural freedom that I explore in the fourfold analysis of beneficial use
* On the social sphere, Birnhack provocatively claims that "both the public domain and the idea of freedom of speech stem from the same source" in the sense that the both "construct... a communicative sphere, where people can interact with each other in various circles"

J - Publication of governmental information (pp.133-134)
* Prof Edward Lee - a PD of governmental information that "helps to establish a legal restraint against government overreaching by ensuring the public's access to materials that are essential for self-governance and learned citizenry"

K - A domain of publicly accessible information (pp.134-135)
* this acknowledges that IPRs may in fact make information more accessible, e.g. patents promote the publication of information
* this simply reinforces the ambiguities introduced by discussions of *real* cultural freedom as opposed to the more libertarian ideal of freedom-from-restriction
* picked up on p.163 in the case of Lexis and Westlaw who proprietise PD legal information and provide widespread access to it, making the information resources more widely available than the numerous IPR-free points of access. "Access controls and commercial licensing are strategies for recouping the expenses of providing these added values."

L - The unpublished public domain
* private works such as journals, preparatory works such as first drafts, and publicly displayed or performed works that aren't technically counted as being "published" (yawn, conceptually very different from the first two types)

M - The romantic (or imperialist) public domain
* Indigenous people may want protection for commercially valuable traditional knowledge, that would otherwise be (and indeed commonly is) appropriated without compensation by Western commercial interests, and so advocating the PD can seem like another form of Western imperialism
* the PD may also be an impediment to distributive justice, where patents and to a lesser extent copyright could distribute the global North's wealth to the global South in return for access to their knowledge
* although sympathetic with the goals of Northern PD advocates, Chandar and Sunder caution against a romantic conception of the PD that militates against any new appropriation, and so masks the disadvantage suffered by indigenous populations"
* c.f. Liang and co. about fighting IP within countries without strong IPRs as an alternative angle, and the Honeybee network for a practical attempt to learn from Chandar and Sunder's point

The definitions can be clustered according to three criteria: (pp.145-147)

i - The legal status of information resources (whether or not they're encumbered by IPRs)
ii - The freedom to use information resources (more or less, encompassing i but also for example Benkler's PD E)
iii - The accessibility of information resources (in Samuelson's discussion, a very thin liberal understanding to account for other legal restrictions such as classified secrets, unpublished works and the pro-patent argument in PD K)

Samuelson turns these criteria into a matrix, and derives a heirarchy of desirable situations: (pp.150-151)
1 - Freedom to use and accessible
2 - Encumbered by IPRs but broadly usable and accessible
3 - Inaccessible but IP-free iresources

This contradicts the ethical imperative endorsed by Stallman and Myers, but then 'accessible' needs defining to sharpen this claim.

p.155, useful note - "A copyright lawyer might explain, for example, that it is permissible to copy ideas or information from a copyrighted work because section 102(b) of the [US] Copyright Act of 1976 excludes them from the scope of copyright protection"

Look up Jessica Litman, Digital Copyright (2001), pp.29,181 for a discussion of why the public doesn't respect and abide by copyright law... "perhaps copyright professionals should reflect on the arcane and nit-picking language that copyright law and its statutory Categorisation provides" (p.156)

Samuelson suggests that Benkler's PD (E) is the most sensible use of the term 'PD' when addressing a general audience, although in legal discourse such as use is confusing.

Kimppa starts by asserting that (p.68):

1. Locke bases his arguments for property on self-ownership.
2. Ownership is necessary because resources are scarce, which isn't true of immaterial resources.
3. No one is deprived of ownership if someone else owns the same immaterial resource.

The first statement is undoubtedly true, though he doesn't follow it through. The second statement is one view of his arguments for private property, much like Shiffrin's argument, but needs justification. The third statement simply underdevelops the concept of ownership, neglecting the exclusive management rights that we might think of as an integral part of the concept.

On deprivation

Kimppa backs up his second and third statements with references to Locke, e.g.:

"He that ... subdued, tilled, and sowed any part of it, thereby annexed it to something that was his proerty, which another had no title to, nor could without injury take from him" (II sec.31)
- note both the "no rights" and "harm" arguments

"Every one ... ought ... as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another." (II sec.6)

On enough and as good

The standard interpretation in the immaterial context is that the immaterial common is infinite, so my appropriation of a particular part will always leave enough and as good for others. An alternative interpretation is that the act of appropriation wouldn't leave enough and as good of that particular appropriated object (p.73).
- But this seems a bad reading of Locke since he was concerned with leaving enough and as good, so others would be able to appropriate their own property. He didn't consider the fact that immaterial objects are non-rivalrous and so wasn't concerned with my eating an apple depriving others of that same apple.

Kimppa argues that the waste and spoilage proviso clearly rules out full ownership rights because it would be wasteful for only one person to use a product when all could use it simultaneously (pp.74-75).
- Why should it "perish" in the possession of one, surely it is just less well used than it might otherwise be? Again, is Locke not more concerned with delimiting our appropriation to that which we need and find convenient, rather than putting tough instrumental conditions on our ownership? Landowners would be under constant scrutiny for any inefficient use!

The FSF liberalist case

The FSF fits into Kimppa's (mis)representation of Locke's theory of property because they are also concerned with freedom of use (including modifying and sharing); they advocate that anyone should be able to "do with it as he or she pleases" and that we shouldn't impose artificial scarcity on software through IPRs (p.76).

He plays heavily on the non-rivalrous nature of software and the artificial scarcity created by IPRs (pp.76-77).

He erroneously claims that consequentialist arguments concerning the potential benefits of full ownership cannot be a concern for a liberal theory, which itself must value freedom (p.75, pp.77-78).

Copyright law "can no longer deal with society’s demands and expectations, nor can it cope with modern forms of collaboration facilitated by technologies that the law makers could never have anticipated".

Copyright violations are widespread amongst consumers and creators in part because "current legislation is too complex and, in parts, out of step with modern technology and expectations".

Copyright law as it stands embeds the notion of "yours" and "my" work, meaning that for me to make use of your property I must first seek permission from you. "Yet this distinction between ‘my’ work and ‘your’ work is entirely a legal and social construct, as opposed to an absolute fact of human nature, and new technologies are blurring the boundaries between what is ‘mine’ and what is ‘yours’ whilst new cultural movements posit a third position, ‘ours’." With certain forms of collaboration such as wikis "The concept of individuals owning their original contribution falls down when contributions become so entangled that it’s impossible to split one person’s work from another".

"Mash-ups are almost always illegal, and this illegality drives mash-up artists underground... clearing rights is a complex and expensive procedure well beyond the reach of the average mash-up artist."

He begins with a very brief and unexceptional overview of Lockean property theory. Then he moves to two problems with labour in the context of intellectual products:

The indeterminacy of labour

"For Locke, a property right is partly based on the premise that labour is often an unpleasant and onerous activity", but with intellectual products this is far from clear. "An idea may simply come to someone while she is taking a walk or relaxing at the beach. Furthermore, she may enjoy composing a poem, a literary work, or a software program as a form of recreation and thus would not associate such an activity with labour." There can be difficulties in determining the quantity and quality of labour required for justified ownership of physical products, and with intellectual products the indeterminacy of labour is even greater.
- Can physical work not also be pleasant? Why else would people tend allotments, take pleasure in crafts and so on? Intellectual products simply seem slightly more indeterminate, and so critics of Tavani could reply that the objection is overcooked. Never mind if the labour was pleasant or difficult to quantify, the fact remains that the creator laboured to produce the work.

Mixing one's labour and original acquisition

Nozick pointed out two flaws in the labour theory. To begin with, if I spill a can of tomato juice with a radioactive signature into the sea, "do I thereby come to own the sea or have I foolishly dissipated my tomato juice?" (Nozick 1974, pp.174-175).
- Should there be a determined quantity or quality of value added to the common before I can appropriate it? In the digital context one can imagine a benevolent computer virus that seeks out flaws in publicly downloadable software and fixes them. By adding value to these different products, is the creator of the virus entitled to some kind of property right? If you clean up an old recording, removing a few glitches for example, then current copyright law entitles you to property rights over the resulting recording. These are adding value to private property, not the common, though. Software that generates art is a better example, where the artist labours to produce the software but then plays no further role, yet can produce huge quantities of work that he will then own.

There is another worry about original acquisition, i.e. can we trace the exchange of property rights back to an original and justified appropriation of the common? If not then it would seem that "Locke's theory (like any entitlement theory based on original acquisition) is irrelevant to contemporary debates about property rights" (p.90). Scanlan, however, points out that in the case of copyright no record of original acquisition is needed, and besides the length of the property terms mean that the original appropriation of the common was relatively recent.
- What about orphan works whose owners are unknown? Also the indeterminacy of attribution, where it is unclear who actually added what value to which chunks of the common to get a resulting work.

Copyright violating the "enough and as good" proviso

Whilst the "tragedy of the commons" described by Garrett Hardin is a familiar boost to Locke's theory of property, Heller points out that there may be a "tragedy of the anti-commons" which can result in an under-consumption and underutilisation of resources - violating Locke's waste proviso. Copyright and related laws may actually be enclosing too much of the common (p.90)

But before we can discuss the over-enclosure or otherwise if the information common we need to clarify a few weaknesses in the analogy between the physical and the information commons. The first, obvious difference is that the information common is non-exclusionary and non-rivalrous. The second is that it has potentially infinite extension, since any non-Platonist characterisation would admit that human endeavour expands it. In the case of contemporary copyright Himma (2005, p.7) seems correct in claiming that the public domain of expired works is "stocked by and only by the activity of human beings". However, it can still be eroded by means such as the law, technology, social practice, etc. and as such is analogous with the physical common in a repsect relevant to Locke's theory of property.

Tavani posits two questions that can be asked of any particular policy or law related to intellectual property:

1. Does that law or policy diminish the information commons by unfairly fencing off intellectual objects?
2. Are ordinary individuals made worse off as a result of that law or policy when they can no longer access information that had previously been available to them?

Applying these questions to two recent laws passed in America (DMCA and CTEA) they suggest that "the spirit" of Locke's proviso is clearly violated because the information common is eroded and the public is clearly made worse off. So at the very least his theory seems to offer us guidance for questions of property and intellectual products.

Himma, K. (2005) 'Information and Intellectual Property Protection: Evaluating the Claim that Information Wants to be Free', APA Newsletter on Philosophy and Law 4: 3-9

Hughes sets up a familiar retelling of Locke's property argument, emphasising the following concepts/conditions:

Labour - mixing one's labour with the common is essential for enjoyment/use. Our labour, "our hands... energy, consciousness, and control" are our property.
- Relates to theories of personhood.

Enough and as good - "essentially... an equal opportunity provision leading to a desert-based, but noncompetitive allocation of goods".

Waste - one the one hand further appropriation might be justified by the potential waste of resources, even after each person has "enough". On the other, it might be unjustified for one person to appropriate something from the common if he doesn't make full use of it.

The common stock - exerting one's labour upon some appropriated good is supposed to "increase the common stock of mankind", but this can only be so if the product is tradeable.
- Another condition would be if the benefits were non-rivalrous despite the product being privately owned, e.g. certain information and services.

Labour and the production of ideas

He makes a distinction between the social and metaphysical answers to the question: Is labour required to produce ideas?

Paradigm cases make it seem clear, e.g. drawing plans for a new suspension bridge, writing a dissertation with extensive research and inventing the light bulb.
- This is his "social understanding", since it could still be the case that in each example the labour involved doesn't add any value to the ideas common, it may be re-presenting rather than producing ideas. One might ask how much of my dissertation is new information, what the value of my laborious presentation is, and therefore what ownership rights I have over the final product.

On the labour-avoidance view, which is really only compatible with an instrumentalist (rather than a normative) theory of property, we must incentivise labour because it's inherently unpleasant. But this is simply not true, the productive activity may be neutral or even pleasant, freely engaged in. It would be a case-by-case basis rather than a basis on kind that supports such an instrumental theory.
- Relates to Shiffrin's point about the "of a kind" condition.

On the value added labour view it is the "social value that 'deserves' reward, not the labour that produced it". This condition can be weak, as in some interpretations of patent law according to which the "'usefulness' or 'utility'" conditions require only "that the invention should not be frivolous or injurious to the well-being, good policy, or sound morals of society". The tradeable/non-rivalrous interpretations of the "common stock" condition provide an alternative frame for value added. The standard interpretation of patent law requires that "the average person schooled in the art would not consider the advance immediately obvious, but also would understand how the invention improves upon previously available technology", couching property rights in instrumentalist terms. But with copyright there is no value-added condition, and indeed any judgements on the matter would be highly subjective.
- For ideas as a kind, it can only be that an individual creates some value - whether for themself or others - through her labour that justifies ownership. To cover all cases, including those where the individual may not accord much value to his product but want exclusive ownership nonetheless, we must provide a metaphysical account of the value of labour mixed with the common. No social understanding will suffice for a normative theory.

Labour and the Idea/Expression Distinction

He sets up a rather curious productive process: first the creator has an original idea, then he executes or expresses it. But there are some missing steps.

The design of the innovative suspension bridge will employ many existing ideas, potentially both those privately owned and those in the common (public domain). Knowledge of everything from elementary geometry to complex mechanics, from material properties to existing designs with their strengths and flaws will be used.

Hughes notes that the idea/expression distinction can be made "at a gross level", in that we find Sir Arthur Conan Doyle's expression of the crime novel valuable not the idea of a detective solving mysteries. However it is easy to recast the question at a different level of detail, performing some literary analysis to explain the ideas that made Conan Doyle's work so valuable, at which point the distinction becomes more blurred.

Hughes suggests that the "idea/expression" dichotomy can be restated as "idea/execution", which makes it clear that the latter involves labour and can therefore be owned by desert, whilst the former doesn't and so requires an instrumental basis for ownership. Even if the distinction isn't always clear we tend to emphasise ownership of execution in property law.

The ideas common

The concept of the common in Locke is in fact strongest with ideas because:

1. The ideas common is practically inexhaustible. My extracting something doesn't prevent others from extracting something of a similar quality and quantity.
2. In another sense it is inexhaustible in that that my use of an idea in no way depletes from the common, nor prevents others from using that idea.
3. The creation of a new idea, if it enters the common, actually expands the common. Of course a Platonic conception of the common rules this out because there would be no new ideas, unless we distinguish between the Platonic common and the humanly-accessible common. Hughes says "putting X into intellectual commerce does not increase the common so much as it enhances the abilities of people to take from the common".

The question is what the commons contains. This has two components: what does it contain prior to any human labour, and what after labour (e.g. after copyright terms expire). Did we discover geometry or was it the product of a human mind? Likewise any poem, dramatic plot, mechanical model and musical composition.

For Hughes the common raises one central question: how should we distribute it to achieve the most beneficial use? Intellectual property rights turn on this question.

He returns to the non-rivalrous benefits of privately owned works with the example of patents, where the information is openly published even if it's use is exclusive to the owner. The common is thereby expanded in a sense because others may find inspiration to create (in the eyes of patent law) a new innovation within the published details of the granted patent. This makes ideas distinct from Locke's notion of increasing the common stock, because his argument depended upon a person trading the product at some point, whereas information may not require that; the exclusive publication of information, untraded, may inspire or enable the creation of other information that "are not 'attached' to their antecedent ideas as grain is attached to farmland".
- This, of course, is directly affected by rights over derivative works, e.g. in copyright law. So if Locke's theory doesn't obviously account for it then it would be necessary to extrapolate a sympathetic account.

There are two kinds of ideas that cannot be owned:

1. "everyday ideas such as thinking to wash one's car, to add paprika to a quiche for colouring, or to tell mystery stories to your cub scout troop". The reason Hughes gives is broadly instrumental - it would require too great a redistribution of wealth, they are too generally useful. But a normative reason could come from the point that it would violate the "enough and as good" condition.
2. "extraordinary ideas", both those that are discoveries about natural facts (such as the theory of electromagnetism) and those that are in "widespread public use" (such as architectural columns). It is the extraordinary importance of these ideas to society, the contingent fact that they appear as basic truths, that makes us deny property rights over them. Again, this can be normatively stated in terms of the "enough and as good" condition.

- But how on earth do we decide when an idea is everyday or extraordinarily important? What about folk stories with wide cultural currency, or inventions such as basic internet technologies that become "basic truths" within the period of their patents? Why should Newton be able to copyright a particular system of notation for calculus under current law but not calculus itself? The latter is clearly extraordinary, but would a standard system of notation not be likewise?
- Is "enough and as good" a sufficient guide, as Hughes seems to suggest?

Nozick suggests that patents may expire in recognition of the fact that somebody else might have made the same discovery shortly after the patent holder (in Anarchy, State and Utopia, need a page number).
- This doesn't apply to copyright, surely?

Another justification for expiration he offers is that initial ownership encourages or enables enrichment of the common, but perpetual ownership would slow enrichment. Therefore you strike a balance with a limited ownership term to maximise the common stock.

The non-waste condition

Two kinds of waste related to ideas:

1. As ideas get older they may have less social currency, particularly with obsolete technology and unfashionable or unfathomable cultural objects (see for example Becker). Hughes downplays this, in party by emphasising the scope for trends to regain cultural currency or have a contemporary reinterpretation.
2. The individual may have wasted their labour in producing an underutilised idea. Hughes suggests that the waste here is minimal and that an idea's value to the creator, apart from its social value, will remain constant. "With intellectual property, there is no waste to the individual because the act of 'consumption' is inseparable from the act of production". But isn't this as true of physical property? In Locke's example of spoilt food the farmer will have gained some benefits from the act of production, but the pertinent value of the food was its social or market value, just as it is likely that a great deal of intellectual property will be produced primarily for its social or market value.

Conclusion

Hughes concludes by dismissing the waste condition, and stating that a strong theory of intellectual property needs to combine the "enough and as good" condition with a Hegelian personality theory, which may be compatible with Locke's emphasis on the role of labour (see Rapaczynski).

Four basic approaches to IP:

1. Utilitarianism - A simple defence of copyright offered by William Landes and Richard Posner: the cost of expression is significantly higher than the cost of distribution (they confusingly call it the `cost of production'), and so in a competitive marketplace it is unlikely that creators will recoup their costs. Thus they will be deterred from making socially valuable intellectual products. Of all the possible ways to help artists recoup the costs and thus to incentivise creative production, they contend that copyright is the least wasteful of social resources (p169).

=> obj: how socially valuable are the intellectual products once copyrighted, and do they take that into account? See: http://cyber.law.harvard.edu/IPCoop/89land1.html

2. Labour Theory - the idea of a natural right to intellectual property, usually from a Lockean stance according to which IP mixes labour with the commons and, since the common is non-rivalrous, we must have a right to own it. However as Nozick's writings on patents illustrate this approach won't necessarily defend the strongest property rights often demanded by some figures in the content industry (pp170-171).

=> obj: bring in Shiffrin

3. Personality Theory - holds `that private property rights are crucial to the satisfaction of some fundamental human needs'. This could mean either that IP protects creators who have expressed their `wills' in their works, or that IP would create `conditions conducive to creative intellectual activity, which in turn is important to human flourishing' (p.171)

=> obj: far from clear that this approach can be defended taking into account all of the effects of copyright, for example if some kind of social consciousness or ability to creatively engage social circles is abridged by copyright (ref stallman and neighbours?) then we would need a complex argument to find the appropriate balance between these effects, which won't necessarily come down on the side of strong or even any copyright

=> the basis for moral rights in Europe, see Cotter (http://cyber.law.harvard.edu/metaschool/fisher/integrity/Links/Articles/cotter.html)

4. Social Planning Theory - holds that `intellectual property rights ... can and should be shaped so as to help foster the achievement of a just and attractive culture'. It seeks to develop a teleological argument with a rich conception of social welfare, thus moving beyond the simplistic utilitarian arguments used in the first approach.

=> this seems to combine, potentially, ideas from the previous three and lends itself to Shiffrin's analysis, developing a rich understanding of beneficial use and how that might be compatible or otherwise with copyright

Problems for 1 arise when trying to asses the social utility of different potential copyright regimes. In the first place the economic benefits of copyright as commonly understood (according to a basic notion of social utility) are ambiguous. This problem is compounded by the difficulty in describing a satisfactory account of social utility. Copyright and patents can often encourage wasteful innovation, and disproportionately encourage innovation with less social utility (pp.177-182).

For example, Glynn Lunney has argued that copyright as it stands fails to fully rewarded according to the social value of their contribution, and that copyright fails more in some fields of endeavour than others. He cites the examples of innovation in education techniques, community activism and primary research. The creators of the former and latter are supported by their state-granted income, whilst community activists generally receive no money. If copyright were framed as a fair reward for social contributions based upon their utility then, as Lunney suggests, we would have to reduce copyright protection `until the creators of entertainment receive rewards no greater than the returns available to innovators in other fields' (p.182).

Another example -- pharma and other technology companies chasing the same technology in parallel, then either dropping their research or seeking a non-infringing alternative to achieve the same result (p182).

Shiffrin argues against IP using Lockean property theory, so the 2nd approach is not obviously tenable. But ther are further problems, the first of which is defining "intellectual labour", since different definitions will disable certain forms of intellectual property. Fisher suggests four possibilities: (1) time and effort; (2) activity in which one would rather not engage; (3) activity that results in social benefits; and (4) creative activity. The third, for example, would require that all creators would need to apply for their copyright and have the work judged according to some social utility requirement. The fourth would require nonobviousness analogous to patent doctrine (pp.185-186). Creators not meeting these requirements could not be deemed to have done any labour on the product.

=> could the free culture parameters for beneficial use (learning, consuming, sharing, remixing) have any bearing here? Certainly for the third option; they make for a more richer conception of social utility and militate against appropriation, which chimes with Shiffrin's emphasis on property rights needing strong justification against the common. Fisher thinks option 1 is closest to Locke's intent (p.185) but if we take Shiffrin's interpretation seriously then it would seem logical to say that the labour requirement must add some value to the common, it must make more beneficial use of the common than without, and so the third option seems to fit quite well. Or is it "have you laboured AND have you added value" (better for Fisher) rather than "have you laboured and thereby added value" (better for me)?

=> random aside, Fisher notes that `our cultural heritage - the set of artefacts ... that we "share" ... [give] our culture meaning and coherence' (p.186)

There is also the problem of proportionality: just how much of a reward should creators deserve, and could a fair metric link reward with social contribution? Or should copyright simply be complete appropriation that doesn't expire, as with physical property?

On the third option there seems one particularly troubling problem (both for the option and for a radical interpretation of free culture): the relation between the creator's personhood and her work. A famous disagreement between Kant and Hegel turns on whether or not the expressions of ideas should be part of the creator's personhood (Kant thought yes), and whether losing exclusive control of those expressions is tantamount to alienation, a loss of identity and an inability to realise oneself as an individual and social being (pp.189-191). See also Cotter (http://cyber.law.harvard.edu/metaschool/fisher/integrity/Links/Articles/cotter.html) and Hughes.

=> my work on the hacker ethic and alienation suggests an alternative tack: one is alienated not through losing *exclusive control* of the expression, but through losing beneficial use of the expression, finding that one can no longer make use of the products of one's own intellectual labour. Excluding others is actually damaging to one's ability to realise oneself as a social being, though perhaps demanding attribution and other areas of moral rights are still necessary?

=> related to alienation & the hacker ethic, a widely held sentiment in the free culture community, expressed for example in this article on Subjectrights (http://www.anonequity.org/weblog/archives/000276.php) is that copyright fails to consider and protect the interests/rights of the user. Whereas physical property may be sold, transferring exclusive rights, copyright is generally only licensed, granting very limited rights whilst retaining most. (Is this the correct metaphor e.g. when buying a CD do we license, fair use, etc.) Central to this is the idea that creators should not sell their copyright, their copyright in part enshrines some inalienable rights that must relate to alienation, personhood etc. But free culture retains those rights without requiring exclusive control, etc.