STINA TEILMANN AND N55 EXCHANGING
Stina Teilmann is a Ph.D. candidate researching on
literary and artistic property rights in France and Great Britain.
The exchange is based on an e-mail conversation that took place between
February 2002 and May 2003, partly during N55’s residency in Los Angeles,
Thanks for your visit. Here are some exerpts from About ownership of knowledge
and About ownership of land, by N55 as promised. Read also ART AND REALITY.
Patents- ownership of objective knowledge:
Science is about making right assertions. Right assertions represent objective
knowledge. Objective knowledge is something which can’t be denied meaningfully
if we want to talk rationally together. Objective knowledge can be knowledge
about facts: at four o’clock they sat down and did this, or this mountain
is 3000 meters high. Objective knowledge can also be knowledge about logical
relations. To take a patent on, for example, knowledge about the human
genome or a new type of medicine is to claim ownership of objective knowledge.
This means that some persons claim the ownership of logical relations
and knowledge about facts. This ownership means that other persons must
pay to use objective knowledge, or that other persons are not allowed
at all to use it. If we claim a patent to objective knowledge, we also
say that some persons can use logical relations and facts and some can
not: Here we have a person, who should be treated as a person and therefore
as having rights, but this person is not allowed to use logical relations
or knowledge about facts. It does not make sense to claim ownership of
objective knowledge. If we try to defend ownership of objective knowledge
using language in a rational way it goes wrong. The only way to defend
ownership of objective knowledge is to use power and force. No persons
have more rights to use logical relations or knowledge about facts than
other persons, but concentrations of power use force to maintain the illusion
of ownership of objective knowledge.
Ownership of land:
It is a habitual conception that ownership of land is acceptable. Most
societies are characterized by the convention of ownership. But if we
claim the ownership of land, we also say that we have more rights to parts
of the surface of the earth than other persons have. We know that persons
should be treated as persons and therefore as having rights. If we say
here is a person who has rights, but this person has no right to stay
on the surface of the earth, it does not make sense. If one does not accept
that persons have the right to stay on the surface of the earth, it makes
no sense to talk about rights at all. If we try to defend ownership of
land using language in a rational way it goes wrong. The only way to defend
ownership is to use power and force. No persons have more rights to land
than other persons, but concentrations of power use force to maintain
the illusion of ownership of land.
I am writing from Churchill College, Cambridge, where I am spending the
autumn semester, in order to find material about copyright and images
for my thesis. At the moment I am looking into how the Diana, Princess
of Wales Memorial Trust is using trademarks to control the image and the
signature of the princess on all sorts of things: dolls, postcards, porcelain,
flowers, souvenirs etcetera. The trust uses trade marking because Great
Britain barely has privacy rights and has no publicity rights, as many
states in the U.S. do. For example Washington State, where celebrities
have the exclusive rights to their own image until seventy years after
their deaths and ordinary people until ten years after. (How do you distinguish
by the way?) I am also looking at digitalized pictures. Museums and picture
archives are into a new business: copyrighting digital pictures of artworks,
which in themselves are too old to be in copyright. There is a tendency
that older art and literature, that otherwise would belong to the public
domain, in this way is brought under renewed copyright. In literature,
"authentic" and "revised" versions of popular authors’
works start to appear. The publisher claims renewed copyright, even though
the author died seventy years ago or more. And in some of these publications,
there is a warning in the colophon to all scholars that citations are
only allowed by permission of the holder of the new right: author’s Estate,
the heirs, the publisher or editor of the new text.
I brought your three text pieces (About Ownership of Land, About Ownership
of Knowledge, and Art an Reality) with me to England and I have had the
intention of writing you for a long time. I find what you are saying of
tremendous importance. Recently, I read that intellectual property typically
comprises more than 5% of a Western national economy. And ever more is
regarded as intellectual property these days. There was a lawsuit in England
where a person brought his friends to court for "stealing" an
idea for a discotheque with more floors and several bars and so on (how
original...). Another famous trial revolved around a celebrity couple
that sued a person for selling pictures of their wedding to the press.1
The couple claimed the exclusive rights to the profits from pictures taken
at the party. I find that people increasingly demand ownership over things
that are just trivial and common property, over what cannot be monopolized
at all. Copyright laws have become something of a trash bin for the urge
to possess and control knowledge and ideas. It has been forgotten that
the original purpose of copyright in the 18th century was to encourage
the dissemination of art and new knowledge. Furthermore people seem no
longer to question the idea of ownership of intangibles. Some regard intellectual
property rights as natural givens. It is not. It is a modern invention.
There may be many good reasons to grant copyright and patents: it is often
argued that it encourages creativity and inventiveness. But then why not
try to establish if this is true? This empirical ambition does not appeal
much to legislators however. Instead, because there is such a strong pressure
to define and justify copyright, patents and trade marks as property all
possible rhetorical means are made use of. And legal debate drowns in
analogies. The favorite analogy of intellectual property law, inspired
by the philosopher John Locke (1632-1704), is that "the one who has
sown, also has the right to harvest."2 Locke’s idea was that:
"[t]hough the earth and all inferior creatures be common to all
men, yet every man has a property in his own person; this nobody has any
right to but himself. The labour of his body and the work of his hands
we may say are properly his. Whatsoever, then, he removes out of the state
that nature has provided and left it in, he hath mixed his labour with,
and joined to it something that is his own, and thereby makes it his property.
It being by him removed from the common state nature placed it in, it
hath by this labour something annexed to it that excludes the common right
of other men."3
This way of reasoning by analogy and farming metaphors has become so integrated
in our thinking that it is hardly questioned any more. And it is as if
all discussion stops here. I would like to ask if copyright and patents
must come under property law and not, for instance, under contract law?
Another concern I have in relation to intellectual property law is that
lawyers always say that "legal wording is not what the general reader
of English is used to". Does that immunize them against external
criticism, and exempt the law of the need of a rationale for copyright
in plain English? Ideas and knowledge have a greater potential to be used
by many persons at the same time than most physical things. And with the
contemporary technology of dissemination, we are close to the Enlightenment’s
ideal of free access to knowledge. But as you say, the rights of some
soon become the restrictions of others. Intellectual property rights need
our consideration; do they become a violation of the rights of the majority?
I have the following reflections: since intellectual property rights cannot
be justified logically, their aims and effects must always be made explicit.
And the effects must not work against the purposes. For example copyright
must not be used by jealous heirs to prevent the publishing of manuscripts
to which they have inherited the copyright. That is possible today. Nor
should the harmonizing of the intellectual property legislation within
the European union have as its result that British artists cannot reuse
material to which they have sold the copyright. This may be happening
now. According to British law, artists and authors can sell their copyright
outright, while a certain clause secures them the right to reuse their
own material. If this clause gets harmonized away, a British author risks
losing, for example, the right to reuse her or his own novel character.
Neither should it be forgotten that although a published work is not in
the public domain, it still is in the public sphere. One cannot expect
to have the full control over something which is addressed to a large
audience. It seems for instance absurd to want to forbid links to homepages
which are already publicly accessible. With all this in mind, I ask myself
whether it would not be more meaningful to have privileges to land and
knowledge, instead of ownership to it.
Enough law for now. Only, law has such an immense influence on our lives
– perhaps it is reckless to leave it to lawyers alone?
It was very interesting to hear about your investigations. The convention
that one has the right to buy ownership is quite uncontested. Copyright
to knowledge is a cultural disease, which has a lot to do with the economic
force we are subjected to. And that in western culture, the profit motive
is in high esteem, often in the guise of other considerations, like the
one that a researcher-author-inventor should be allowed to harvest the
honor and the fruits of his work and investments, as you mention. That
monetary wealth is a good to strive for is such a deeply rooted concept
that it becomes incredibly difficult to imagine that things could be otherwise.
This concept is nurtured by the existence of very deep poverty and the
fear that it should hit one self, which is an absolute possibility in
a country without social security. Fear is an important driving force
in the USA. It becomes increasingly important to avoid similar conditions
in Scandinavia (we are getting there). The USA is of course the best example
of a culture which has gone berserk with regard to profit. A trip out
on the street tells you that this is how reality is defined here. It seems
crazy to stand on the pavement between a homeless person and a shop selling
expensive antiquated furniture and at the same time assert that it should
or could be different. The differences are so graphic as if they had been
created by natural forces. It is not surprising that a society like this
encourages opportunism and pragmatism and ridicules and marginalizes everybody
who tries to maintain that things can be done in a different way. Neither
is it surprising that many political activists concentrate on single cases
like welfare of prisoners or recycling- because the superior force is
Ownership is a foundation stone in capitalist thinking and is based on
the notion that fundamental resources are not common, but commodities
that can be speculated in like other commodities. If society is defined
as a competition and a struggle between everybody, the most obvious solution
is that people have to acquire what they need through force and competition.
If we define it otherwise, we have other options. Common property (in
modern time) has normally been linked with a strong concentration of power,
a socialist state, which puts forward another ideology than the capitalist
state. That is a huge problem, which is connected to the fact that we
live in nation states and large political entities that present themselves
through models and ideologies. We have very little experience in organizing
smaller concentrations of power, and that is probably why every assertion
that we should try to organize smaller concentrations of power, are rejected
With regards to intellectual property: this is significant not only to
art and literature but also in relation to patents. This is particularly
scary in a global context because legislation in the rich areas of the
earth stand together in denying poorer countries access to cheap medicine,
for example. Another example is food production: Farmers in order to be
competitive have to use modified seed and pesticides designed by "life
science" companies, and this rapidly bars access to other types of
seed and other forms of production. A group of scientists in Norway is
among those who warn against the unrestrained use of genetically modified
organisms; they say that the possible harmful effects are about as well
documented as those of Thalidomide or DDT when they entered the markets
in the 50s and 60s. They also say that independent research facilities
and independent institutions start becoming a sparse "commodity".
Because so many researchers are sponsored (bought) or work for companies
that want to produce saleable products as soon as possible, it could become
big business to be able to offer independent research. Patenting basic
things like food and medicine is legitimized by arguments that the companies
need to get their investments back, and the patents are used to prevent
others from getting access to the same knowledge. By ignoring that there
is no logical foundation for ownership, one looks away from our only possibilities
to distinguish between right and wrong. Thereafter, the game is free for
social conventions and power games. By taking language seriously and respecting
that which we cannot disagree about, logic, we have the possibility to
find ways of organizing which are not the results of ideological concepts
or power interests. Unfortunately, it doesn’t seem logic is what those
in power are concerned the most with at the moment.
In his book "Slide Mountain, or The Folly of Owning Nature",4
Theodore Steinberg relates some entertaining examples from trials in the
USA; they are all concerning the question of whether and to what extent
people can own nature. There are conflicts about soil that remain after
a river changed it’s course, about "weather modification companies"
that was a promising enterprise in the 60s (which now seems to reappear),
that by sprinkling silver iodide over clouds could make them snow or rain,
(which led to accusations that these companies had caused drought elsewhere)
about who owns the air over a plot of land and the water under and so
on. The author also describes how pre-capitalist thinking in Europe imagined
the right to own land: A peasant in feudalism could not own land, but
he could have rights in land; that means, a kind of right to be there
and to use it, that was telling more of the social relations to others
who also had rights in the land (the nobility, the monarch). But the point
seems to be that where ownership of land previously was a way to describe
social relations, and the use of things, in capitalism it signifies a
clear right to something, which is no different from the way that private
ownership of immovable things was accepted. As soon as land had been accepted
as a commodity, it was less difficult to imagine that for example air
and water could be so. Now if you say that houses and shoes can be owned
just as little as land, water and air, we also say that our whole exchange
of commodities is built on the construction that one can have an exclusive
right to things that have been exchanged for that which corresponds to
the thing’s value in money. You don’t have to enter a definite social
relation in order to get the thing.
Perhaps you know about the chair we made, DYNAMIC CHAIR, it contained
an invention: the seat rests on a sphere, making the seat moveable. This
principle could be patented, but we refrained from it. This was partly
because after looking into the patent system, we found that it could only
protect you from copying if you had the means to take out a patent in
all countries, and partly because it got us into some considerations about
the wrong in keeping other persons away from knowledge that exists in
the world. What we wanted to protect ourselves against was that people
could copy it and profit on something that was never meant as a commodity.
By publishing the chair and its construction principle, we made it possible
for others to use the principle, and at the same time ensured that no
one else could claim patent rights to the principle that would enable
them to market and sell it. During the last years we have made some copies
of the chair and this has evolved into an experiment with things, circulation
and significance. People who want it pay a price that corresponds to how
much time, material and development went into it. And when they take over
the chair they promise that they will not resell it or use it for any
kind of speculation in art objects. They can’t just buy it, and then decide
totally over it. A specific relationship to other persons follows. It
is suggested that they respect the context the chair was thought into.
LAND functions in some ways similar to this; the formal owners abandon
their exclusive ownership to the land so anybody can stay there and use
it. Nobody can decide exclusively over the land, but have to enter a relation
to other persons if they want to use it.
In relation to what you wrote, we wonder about a couple of things. What
is the difference between public domain and public sphere? How should
one define the difference between privileges to land and knowledge, and
ownership of land and knowledge?
I think the difference between the public domain and the public sphere
is forced. The public domain is a term used in law. It consists of what
cannot be protected as literary or artistic property, what has fallen
out of copyright and what, for some reason, has not been copyrighted.
Perhaps the public domain is really negatively defined: it consists of
what is left over when exclusive rights have been claimed. The public
sphere is what we all contribute to, what no one can monopolize. I maintain
that the division between the public domain and the public sphere is forced
because everything, when it is published, is made public, inevitably enters
the public sphere. In spite of this, some things are artificially held
back from the public domain until the end of a term of, for example, copyright.
A preliminary definition of a right is that to which a person has a just
and lawful claim or that which is recognized by law, violation of which
being a legal wrong. Rights may derive from natural law (the underlying
basis of all law with its idea of perfect justice). A privilege is defined
by the Oxford English Dictionary as "a grant to an individual, corporation,
community, or place, of special rights to immunities, sometimes to the
prejudice of the general right; a franchise, monopoly, patent; specifically
the sole right of printing or publishing a book or the like." A privilege
is a temporary right, not deriving from natural law; it is founded in
society. When the first laws on literary and artistic property were passed
in the eighteenth century it was intensely disputed whether copyright
was to be recognized as a right or as a privilege. The distinction has
great implications to intellectual property law. And it is most interesting
in relation to the mentioned pre-capitalist forms of rights to land.
Your description of rights as the entry into a social relation pierces
right through what has puzzled me recently about ‘ownership’: namely,
the difference between a "title" and a "right" to
something. How is ownership a right? Title is a person’s right of ownership
of land. Right, I should say, is a right to act in relation to something.
Now, I found this fascinating analysis in the English case Donaldon v.
Beckett (1774). It was held that:
"Incorporeal property is of two sorts: 1st, It is a right relating
to some substance, as a right to take the profits of land, without having
the possession of the land or a title to it. 2dly, It is a right to exercise
some faculty, or to do some particular thing for profit. The perception
of the profits, is a taking of some substance or corporeal property; and
hence the incorporeal right is metaphorically called property."5
I wonder if one might say that property, in the beginning, was mainly
a right to particular acts, for instance to cultivate land, the right
being more of a social agreement.6 Only later did property and ownership
develop into its present form: one person’s absolute power over something,
related social relations totally dictated by this person’s title to the
thing. This gives us two kinds of ownership (1) title to land, or (2)
a right to profit from it, the former constituting our usual way of understanding
ownership. I speculate, then, whether a collective oblivion has spread.
We forget that it is possible for ownership to be of the second kind,
that ownership may be defined as the exclusive right to certain acts in
relation to, for example, land while not implying title to it and supreme
power over it.
Only because one has the opportunity to buy a piece of land, it doesn’t
imply one has the right.
A recent example from a village in France where a piece of land is now
part of LAND: The village, using its possibilities for pre-emption, bought
this piece of land. A private person has brought them to court for this,
because he claims he should have been to granted the right to buy the
land. The interesting thing is that this man wants to buy the land only
to abandon it; he wants to let it turn to wilderness as he has done with
all the other land he has bought up during his 30 years of presence in
the area. The village, on the other hand, wants to use this land for cultural
purposes, a sculpture park. This person is an advocate for wilderness
and animals, always in conflict with the villagers who fear brushfires
because of the lack of maintenance. The area has been occupied by humans
for 50,000 years, while human activity has dominated and shaped the landscape,
so surely any "natural state" is an idealized construction.
He uses his legal possibilities to enforce upon the collectivity of the
village a landscape which they do not want and which poses a danger to
At the time of writing the case is not settled and in the meantime, the
plot is part of LAND and subject to anything the villagers and others,
animals included, want to do there.
That is interesting. This self-styled back-to-nature man seeks ownership
not as a means to profit from the land but to obtain absolute power over
it. This reminds me of the continuation of the Locke passage from before.
Locke modifies his definition of ownership by saying that although "this
labour being the unquestionable property of the labourer, no man but he
can have a right to what is once joined to" it is only as long as
"there is enough and as good left in common for others."(15)
There are limits as to how much one man can make his own. Enough should
always be left for others. And a further and often ignored restriction
by Locke is that what is taken from the common state must not go to waste.
Thus, one man can own only "[a]s much as any one can make use of
to any advantage of life before it spoils, so much he may by his labour
fix a property in; whatever is beyond this is more than his share, and
belongs to others. Nothing was made by God for man to spoil or destroy."(17)
In Locke’s definition only labour justifies a right of ownership and this
puts a natural limit to concentrations of power ownership and to ownership
as a device for control.
Yes, but labour in the 16th century and labour now are very different
things if we speak of agricultural work.
At the beginning of English settlement in North America, the system of
landownership known from feudal Europe was enforced there. Huge estates
were parceled out to a few people who also possessed the political power.
Other people, if they wanted other possibilities than being servants to
the landlords and the merchants in the cities, were forced westwards to
get land. In this way, they could also serve as a buffer against the Indians.
After the revolution, during which the ties to the English monarchy were
severed, political influence remained with landholders and only people
who owned property were allowed to vote. This is an example of how ownership
is connected to concentrations of power. Today the connections seem more
blurred, as production is more complex. However, one can still discern
the relation to political influence when one looks at who owns what. The
basic needs of persons (food, shelter, clothing, etc.) are the same as
ever; in addition, we have got a lot of created needs (transportation,
communication, all the different things we eat and drink, entertainment,
education, etc.) at which production is directed. When you seek to cover
any one of these needs you deal with different concentrations of power.
The companies are either state or privately owned. The rights to cultivate,
fish, build, establish communication lines and so on depend on various
forms of ownership of land, buildings, patents, licenses and more. So
the question of ownership cannot be treated separately from other issues
to which it is related. Actually, in most instances, ownership is the
precondition for the various kinds of production: first one secures the
ownership of land, copyright, and so on, and then one starts to produce
goods, print books, etc. It is clear that property law and copyright as
the right to profit is instrumental to much of the kind of production
we are faced with daily.
Still, I think it’s not so much the granting of (temporary) rights to
profit from something as the possibility of keeping title – that is absolute
power over something – which creates concentrations of power. This is
why I try to make out the distinction between privilege and title. Interested
in intangible property as I am I want to sort out the implications of
the distinction for intellectual property rights. At the time when intellectual
property was invented the advocates for property rights (rather than privileges)
believed that the holder of a copyright had something analogous to title
to his or her work. This would have included a perpetual dominion over
it. Yet as argued in the analysis of incorporeal property in Donaldson
v. Beckett (the decision actually put an end to perpetual common law copyright
in Britain) copyright – the exclusive right to print copies as it were
– by definition is the right to take profit but without title. There is
no thing to which one can have title. Knowledge is not a thing. Property,
in this case, can only be a metaphor and copyright can only be a privilege.
I think that we are gradually forgetting that an exclusive right to print
is not necessarily identical with title to something and unrestrained
control over it.
You know one should not be too blue-eyed. These producers and concentrations
of power (in various degrees and shapes) couldn’t care less whether their
ownership is logical or not. What means something to them is that the
law secures their interests. What we have to find out is whether it also
secures our rights as persons. Therefore, although it is interesting to
look into the different details and distinctions in lawmaking, as long
as it serves the same ends: securing rights to profit, it doesn’t make
much of a difference whether it is called rights or privileges (at least
you will have to convince me of that). If someone has exclusive rights
to profit, but apart from that will not prevent others from accessing
the property whether it is knowledge or land, what is the difference?
I am allowed to read the book, but not to copy it. I am allowed to step
on the land, but not to cultivate it. I am allowed to visit a building,
but not to stay there. I am allowed to read the code of a gene but can’t
prevent it from entering my food. The profit motive is the uncontested
assumption that allows private ownership to exist. So we have to ask:
is it not a reduction of persons to say that the main motivation for their
actions should be the wish to profit? If there were no other wishes connected
with work, publishing something, research, than the wish to profit, would
we then do it? To say that all that compels people to go on producing
stuff is the desire to make money and to make a social and material advancement
in relation to others is a simplification that is typical of the way ideologies
explain human behavior. The more reality is defined in a certain way,
the more we start to behave accordingly out of fear and out of obedience
to social conventions and habitual ways of thinking. To describe persons
as beings that seek to profit from their surroundings is to reduce persons
to something definite. This is not compatible with respecting persons
and their rights.
Rather we have to say that profiting is one of the things persons do.
The Yaruk tribe who lived in the California area had something equivalent
to private ownership of land and are described as being obsessed with
money (their money was made of dentalium shells) and used money to settle
every dispute. To accumulate a lot of money was regarded as a good thing,
where in other societies money was either unheard of, or regarded as inferior.
It is an example of how social conventions foster certain kinds of behavior.
The Inuit had no money or private ownership of land. The problem is that
once a social convention that fosters one kind of behavior grows into
a large power concentration, this behavior tends to subdue other kinds
of behavior, that become invisible or are marginalized. This is what has
happened to what we call western culture.
What we have now are large concentrations of power that are outside of
any democratic control. They have the tools that enable them to operate:
capital and knowledge of the kind of organization that is needed to increase
revenue. The interests of heads of corporations are mingled with "common"
people and employees through their shareholdings, and with political power
through their economic importance and personal contacts, and thus are
allowed to operate quite freely. Corporations typically based on one kind
of production are increasingly intervening in many different forms of
production. They become the generalists, have general knowledge and can
work with many different areas while persons are increasingly reduced
to only doing one thing. Specialization ensures delivery of productive
forces for concentrations of power and consumers of the different things
that they produce. In contrast to other ideologies, the profit ideology
needs no followers; the specialists are replaceable. It doesn’t need to
convince anybody – because the profit ideology addresses the lowest common
denominator: basic needs and greed.
Now "life sciences" or biological engineering is probably going
to be the largest sector in the U.S. economy. The possibilities to profit
from new species, medicines and treatments are enormous. This is widely
recognized and is the main reason why there have been almost no obstacles
to passing laws on ownership of genetic material. Everybody can see the
sound arguments. Why should we stop something that has such a promising
future? Patenting life is another example of how legislation not only
allows, but actually promotes a behavior that is driven by profit (although
there are of course persons who work in this area because they believe
that they are helping fight disease and hunger). So far it is resulting
in, yes, huge profits and in greater differences between persons apart
from the risk of irreversible consequences for life on the planet.
We have a situation where a few people and organizations are legal holders
of copyright to genetic information about ourselves and what we eat. Soon,
DNA has to pay before it replicates.
As before: ownership, copyright, property laws first and foremost serve
to secure the interests of concentrations of power. We have to ask ourselves
how we want to contribute to this. What we want to work for and why. What
do you want to work for and why? Why are you interested in copyright?
Why am I interested in copyright? And how do I intend to use my knowledge?
I am fascinated - as well as worried - by the fact that the whole complex
of intellectual property rights as we know it today, taking the rights
for granted, is a historical invention. In 1710 when the Statute of Anne
– the World’s first copyright law – granted 14-year monopolies on literary
works to London booksellers, copyright had nothing like the wide-ranging
effects of intellectual property rights of our time. During the centuries
that have passed between 1710 and today the duration of protection has
gone up to the life-time of the author plus 70 years; the scope of subject
matter has been widened drastically to include photographs, logarithms,
databases, and much more; and copyright - no longer merely a temporary
exclusive right to print a work – has become a much more far-reaching
bundle of rights: publication rights, adaptation rights, distribution
rights, moral rights, etc. The development of copyright law was never
an inevitable development. The history of copyright has been determined
by many different interests. The rights of authors are not more "adequately"
protected today than 300 years ago: authors’ rights are simply defined
in a different way now.
What I want to know more about is how we got from the Statute of Anne
to today’s World Intellectual Property (WIPO) Copyright Treaty? And can
copyright in its present form be justified? Does copyright serve the purposes
as stated in the WIPO Treaty: "to be an incentive for literary and
artistic creation" and "to balance the rights of authors and
the larger public interest"?
Many commentators on intellectual property have noted that the general
public is relatively unaware of the developments within the law. Professor
of intellectual property law David Vaver has remarked that: "There
isn’t any ordinary conversation about intellectual property. Those who
have no professional reason to be involved with it rarely think about
it."7 And Stephen L. Carter has noted further that: "There are
calls for the public to become better educated about IP – but such a public
would surely demand a greater coherence and persuasiveness from the system
than it presently exhibits."8
Copyright law has a great impact upon public life and upon the access
to knowledge of individual persons. New inventions, art, writing, and
public debate all rely on the usage of material that may be copyright.
But people do not know enough about the direction legislators are taking
these years. When the EU harmonized the period of protection "upwards"
from 50 to 70 years in 1996 how many people realized that this was taking
place? And how many know why duration was harmonized "upwards"?
Before 1996 only Germany had such a long term - the normal term was 50
years. Legislators apparently found it less offensive to extend the terms
of all other countries than to ‘rip’ Germans of their rights. But I think
that this choice had unfortunate consequences in countries where works
that had come into the public domain were suddenly recopyrighted. In Britain
editions of works by for example James Joyce (d.1941), Virginia Woolf
(d.1941), and Thomas Hardy (d.1928) prepared for the time when copyright
had expired suddenly became impossible. This is one example of the loss
the public might suffer without even knowing it. Students may be deprived
of new critical editions, the general reading public may have to suffer
a bad translation for another twenty years, etc.
I find it important that the public should know the trends of intellectual
property law and know that copyright can be a good thing but that too
much of it does have severe costs. I would like to assist in the dissemination
of knowledge of these matters that have an impact on so many people’s
1 Douglas and Others v. Hello! Ltd, The Times, 16 January
2001. The couple was Michael Douglas and Catherine Zeta-Jones. The magazine
Hello! had bought paparazzo photos from the couples’ wedding. An injunction
was granted and later lifted by the English high court with the result
that the magazine was able to publish the photos. Douglas and Zeta-Jones
then proceeded to trial to obtain damages and won (April 2003).
2 In the second of his Two Treatises on Civil Government (1690) Locke
develops his famous labour theory of property. The theory creates the
ideological foundation of the Berne Convention and is represented in Article
27 (2) of the Universal Declaration of Human Rights.
3 Locke, John. The Second Treatise of Civil Government and A Letter Concerning
Toleration. Edited by J. W. Gough. Blackwell’s Political Texts. Eds. C.
H. Wilson and R. B. McCallum. Oxford: Basil Blackwell, 1948 (1690)., p.
4 Steinberg, Theodore. Slide Mountain, or The Folly of Owning Nature.
Berkeley: University of California Press, 1995.
5 Donaldon v. Beckett (1774) 2 Bro PC 129; 4 Burr 2408.
6 Alan MacFarlane discusses an ancient difference between Roman and feudal
law. Roman law recognises things as property and divisible. Feudal lawyers
saw things in themselves as impartible whereas property rights could be
divided infinitely. Macfarlane, Alan. “The Mystery of Property.’ Property
Relations: Sharing, Exclusion, Legitimacy. Ed. C. Hann. Cambridge: Cambridge
University Press, 1998.
7 David Vaver, “Patently Absurd,’ Oxford Today Michaelmas (2000): 21-22,
8 Stephen L. Carter, “Does it Matter whether Intellectual
Property is Property?,’ Chicago-Kent Law Review 68, no. 2 (1993): 715-723,
Back to manual for DISCUSSIONS
Back to manuals
Back to HOME