The Myth of Intellectual Property

Part 3: The Rights of Authors

What about copyrights? I am an author myself; and gain nothing by prohibiting a source of income arising from my published writing.  If anything, one might expect me to take a different tack on this part of the subject. But I must accept the conclusions of my own theory. My writings are not my property. I might wish it were otherwise; but the law of God and right reason overrule my wishes.

Am I saying that authors have no right to any legal protection of their works? Of course they do. Authors must be legally protected from plagiarism and the misrepresentation of their works. Plagiarism defrauds an author of due recognition. And to publish any work (especially if it is inferior) falsely, under the name of a famous author, in order to attract buyers, is fraud; and it may diminish the reputation of that author. Any injury done to a man’s good name is a serious crime.

But I must say that these are not property crimes — they do not justify an exclusive right to profit in the case of books, any more than in the case of inventions. The same general principles apply in both cases. Go ahead and profit on the sale of copies of the book you wrote and had published at your own expense, but if others wish to do the same, provided they ascribe the book to its proper author and publish the work accurately as written, who is to stop them? This was once the practice in all the world. The authors of books in the ancient world had a different motivation than mere profit.

I have already argued that the ideas found in my books are not mine in an exclusive sense. I have no right and no ability to prevent others from having the same ideas; or expressing them. This must be true then, of books as well as inventions.

But it might be argued that once a writer’s ideas have found tangible expression in writing, then the form in which he expresses his ideas belongs uniquely to him, and he ought to have the right to control the publication of his writing, as well as the exclusive right to profit from it. It cannot be denied that the form of expression “belongs”, in a sense, to the author. However, that is only in the sense that it appertains to him as his work, and no one else’s. In this sense, we all “belong” to our parents – not as property, but as uniquely their offspring. (Notice that bondservants are recognized as property in the tenth commandment; but wives and children are not.) The form of expression is still ideal, and therefore not property.

The Original Purpose and Nature of Copyrights

If the premise is true that authors have a moral right that is exclusive of others, then why doesn’t existing copyright law recognize perpetual ownership? Like the patent laws, copyright laws allow works to pass into the “public domain” eventually. If there is a real pre-existing property right attaching to the form of expression, then the law ought to recognize that right in perpetuity. This it does not do.

Rather, the law was made to encourage authors, as the patent laws were to promote scientific research. Our U. S. Constitution says,

“The Congress shall have power to… promote the progress of science and useful arts, by securing to authors and inventors for limited times the exclusive right to their respective writings and discoveries…” ( Article 1, Section 8)

This is objectionable because in doing so, the Federal Government has, in effect, created a new class of property which God has never recognized. But notice that it does not pretend that authors and inventors have a prior moral property in their works; and that there is no recognition of such a thing as “intellectual property” at all! Also notice that the end is not the profit of the authors and inventors; but the cultural and technological development of the nation. The patent and the copyright are rather intended to provide incentives to writing and invention.

Property is Linked to Stewardship

But I do not acknowledge that an author has property in his published works. For what one cannot control cannot be property. Property is granted for the sake of stewardship, which is the use or management of a thing for the profit of the one who created the stewardship. It is true that we are, in a sense, stewards of all the resources that God makes available to us — our health, our time, our training, our circumstances, etc. We would not call these things our property, but they are ours to use, and for their use we will be held accountable.

But the basic reason that God ordains property is that most tangible things cannot be well managed unless some particular person is placed over them and held accountable. (“If it’s everyone’s responsibility, it’s no one’s responsibility”, the saying goes.) This requires absolutely the exclusion of other persons from the right to control the use of those things. So possession, control, the right to exclusive use and the exclusive right to profit from the use of property are interrelated concepts that are inherent in the idea of property. But this only makes sense when we are talking about tangible things.

On the other hand, it is neither necessary for purposes of stewardship, nor feasible, that intangibles be allotted to the exclusive use of anyone. And this fact excludes them from the possibility of being anyone’s property.

The Absurdity of Asserting Property in Intangibles

If God had said to Adam “have dominion over the sky”, what sense would that have made? For an insane man might assert his right to rule the sky, but who would believe that he could “have dominion over it” – or any part of it — in such a way that he could derive profit from its use more than anyone else? No control, no possession, no dominion – no property.

In just the same way, once a work is published, there is no way that an author can control the copying of it by others. He must realize that by publishing he has placed the writing de facto in the public domain. If I set a piece of furniture that I no longer want out at the curb for the garbage truck to pick up, and someone else takes it for his use, I cannot fairly call him a thief, or use any legal means to recover the furniture. I relinquished control over it knowingly, intending to dispose of it, and clearly signaling my intention. From henceforth, it is in the public domain.

It is now no concern of mine who takes it. (In fact, it is more in accord with good stewardship and God’s property laws for the poor man to be allowed to take it and use it, than for it to be buried in a landfill.) Just as the law does not recognize one’s property rights over articles set out for the trash man, it ought not to recognize property rights in anything that has been placed in the public domain by publication. What one cannot control can be no part of one’s stewardship, and is therefore not property in the Biblical sense.

Again, as we discussed earlier; without control, one cannot maintain an exclusive right to profit. And the essence of property is the exclusive right to control. But if something cannot be controlled, how can anyone claim a right to control it? And if he has no right to control, how can he claim an exclusive right to profit?

If I design a beautiful and unique facade for my home and have it built, and my house is in view of a public road, near a college of the arts; can I reasonably expect the art students who pass by to refrain from sketching or painting that facade? Would it really be morally wrong for any of them to use such a sketch to fulfill an assignment at school, and therefore profit from the use of my design? Would it be a sin against me if one of them published a painting or photograph of my facade without my permission, or payment of a royalty? Such a legalistic approach would soon tie all of us up in red tape forever.

The simple truth is that the design of the façade is an intangible, and therefore not property. When I put it on display, I make it available for everyone’s admiration and enjoyment (Isn’t that the point?), and inevitably for certain uses as well. I am not saying that the facade is not the homeowner’s property; but that the ideal aspect of it is not.

Originally published as “The Rights of Authors”, part 9 of “A Christian Agrarian Critique of Technological Society” in Foundations 1:9, August 6, 2002

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