Intellectual Property is Common Property: Arguments for the abolition of private intellectual property rights

Introduction

Since the development of capitalist societies in the early modern period, the question of whether the works of inventors and artists need to be protected by law has been disputed.[1] As we know today, the proponents of such protection have won this dispute for now and there is a rigorous, globally connected legal framework in place which protects copyrights, patents, trademarks and trade secrets under the common term of ‘intellectual property’ in almost every part of the world. The common justification for the worldwide legal framework of intellectual property rights is based on two premises. First, that there exists an individual creator of a creative work and that the creative process which brings up the creator’s work is primarily based on individual labour, and therefore the result of this process is to be exclusively attributed to the creator; and second, that without such an exclusive right to exploit and control their works, creators would create less because there would be less monetary incentive to do so, which is bad for society.

In my thesis I will argue that these premises are false because creative processes have to be understood as collective processes, and that even if we believe that private property as such is essential for personal freedom, there is no foundation for the exclusive appropriation of the results of human creativity by individuals. In fact, I will argue that we should abandon the focus on the individual creator altogether and come to a concept whereby not only ideas, but expressions and all the results of creative cultural processes are seen as common goods, accessible by everyone without restrictions. I will argue not only that the concept of an individual creator can be contested, but also that there are few grounds for utilitarian arguments in favour of intellectual property rights even if we still believe in the individual creator.

My work here is about intellectual property rights in a wide sense, but focuses mostly on one of its branches: ‘copyright’ – even though I do refer to patents as well, where it seems appropriate to do so. I will not write about trademark rights in this work, as I do not consider them as being rights that primarily grant exclusive exploitation of creative works, but rather as rights which make sure a product or an organisation is clearly identifiable. This said, it should be possible to categorise trademark rights under competition law rather than under intellectual rights, but I will not discuss this special issue in this paper any further. So, in this essay, the term ‘intellectual property’ means mainly copyright and patents. It is true that intellectual property rights do not share the same attributes in every case. But they have one important similarity. They are about property rights over abstract objects,[2] which makes them in some aspects fundamentally different from general property rights whose subjects are physical objects. I will not give an overview of the history of the development of intellectual property rights, as there are plenty of such overviews available,[3] but I would like to point out here that the current intellectual property rights regime is the result of a historical and political process which is driven mostly by the economic interests of a minority of for-profit organisations in Western societies. The most recent step in the global enforcement of private intellectual property rights, the implementation of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) from the GATT Uruguay round of 1994, is an especially good example of the way in which powerful monetary interests have shaped the global legal framework and with it the public perception of intellectual property. Therefore one should have in mind, when reading this text, that the current established way of looking at intellectual property in our time is not the only possible way, and it need not to be considered the best way just because of the fact that it has become so widely accepted.

I will start in Chapter One with a short overview of the three most important classical justifications for intellectual property rights. They are used in combination by most proponents of the current global intellectual property rights legal framework. All three justifications are challenged in this essay. The natural law and the personality-based justifications are focused around the individual creator, and will be discussed in Chapters Two and Three. They essentially assert that, because human beings ought to be free creatures, they also should have exclusive and absolute rights to their own expressions. And as individuals own themselves, it is also said – controversially though – by self-ownership supporters, they deserve the fruits of their labour. As human beings have a moral right to develop their personality they must have an exclusive right to their creative output, which is part of their individual existence. I will question these assertions and will discuss how the creative process can be perceived as an interpersonal or collective process rather than something which should be mainly attributed to individuals. I will do this on the basis of Richard Dawkins’ concept of the meme and with reference to Ludwik Fleck’s idea of the thought collective in scientific communities. I am not, as it may appear, questioning individual freedom. The abolition of private intellectual property rights would create more opportunities for more people to live their lives according to their needs and wishes. In other words, it would probably lead to more freedom and more justice. In Chapter Four we will discuss the utilitarian justifications. I will argue that from a libertarian, as well as from an egalitarian point of view, the abolition of intellectual property rights would not worsen the economic situation either for society as a whole or for the worst-off. We will see how on utilitarian considerations, as well as to maintain maximum personal freedom, it makes more sense for a society to fully abandon the concept of intellectual property and allow everyone