In Chapter One, Boyle explains how intellectual property rights might have evolved in an ideal world. In Chapter Two he explains how the issue was addressed in England and the United States by 18th and 19th century thinkers such as Thomas Jefferson, Thomas Macaulay, James Madison, Adam Smith, and John Locke and challenges us to return to this understanding. Then, as now, there are differing points of view based on philosophical beliefs and economic interests.
Central to understanding the chapter and Boyle’s position on intellectual property is a letter written by Jefferson to a person wanting his opinion on a patent involving a grain elevator. Jefferson replies indicating that the idea of a string of buckets used to carry material has existed at least since the times of the Persian Wheel. Instructive to those interested in this topic is his assertion that intellectual property rights are a “gift of social law” rather than a “natural right.”
According to Jefferson, intellectual property is neither “rivalrous” (one person’s use precludes another person’s use) or “excludable” (can be quarantined from use by others):
“That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their destiny in any point, and like thin air in which we breathe, move, and have our physical being, incapable of confinement of exclusive appropriation. Inventions cannot in nature, be a subject of property.”
Boyle summarizes Jefferson’s warning against a monopolistic view of intellectual property rights in five points:
- Intellectual property rights are “a temporary state-created monopoly given to encourage further innovation.”
- Intellectual property rights are not an entitlement.
- Intellectual property rights should not be permanent.
- Intellectual property rights potentially restrain and may “actually hinder rather than encourage innovation.”
- Agreement on which and what types of intellectual property rights are bestowed is difficult and limits should be set deliberately.
Included in the chapter are several examples of abuses of the public interest by asserting intellectual property rights in extreme ways. As is common in modern politics, the real reasons for a legislative or regulatory action are often veiled in a rationalized pabulum used to anesthetize an ideologic cohort. The true motivating force is often an economic interest (book publishers and printers) rather than the innovator (author). Extending copyrights for decades past an authors death often results in an economic gain not to the author’s descendants and certainly not the author but to the publishing conglomerate which has purchased said right.
Another possible abusive consequence of extended copyright is a possible restriction on the availability of a work. A copyright holder may prevent distribution based on an objection to the work. And as noted in chapter one, the distribution may be prevented merely by a lack of certainty in the assignment of the copyright. A classic example is given in the judicial misconduct associated with restricting publication of The Wind Done Gone retelling of Gone With the Wind.
Another interesting point is the necessary extension of the (mistaken) idea that intellectual property is a natural right. There are those that believe a creative work is an addition to the human condition possible only because of the creative force of the author. The logical extension therefore is that the author’s right to ownership should continue in perpetuity. Clearly (at least to this poster) this is an absurdity. Some alternate logic applied here is that the author – even a genius whose brilliance transforms the public consciousness – has used their own accumulation of common knowledge as a background resource. Even Newton acknowledged having “stood on the shoulders of giants.”
Boyle himself is an example of one possible reasonable approach assuaging the economic needs of the author and publisher while simultaneously allowing unfettered access to his work. This book and many other examples of creative work are available to the public at very little cost in money or effort in one form and also from a publisher in a traditional hardback book for retail purchase. Hopefully, are the author and publisher as happy as this poster. I have printed a chapter from the public domain pdf file so that I could make notes directly on the text, downloaded a copy to my iPod Touch to read at odd moments, and purchased the hardback to have on my shelf to refer to in the future.
Another important concept Boyle brings forth in chapter two are the definitions and contrasts between the terms “public domain” and “the commons.” He states that the public domain consists of those materials which are not restricted by copyright (for any number of reasons). [Aside – loved the tessellation reference!] “The Commons” is used to mean those materials over which some group has a (potentially restricted) right. His personal view is that the “group” should be the whole society. Thus, the difference in the public domain and the commons is the extent to which the right to the said materials is restricted. So overly restrictive copyright laws are detrimental to the public good because “the public domain is the place we quarry the building blocks of our culture.”
It was a very interesting experience reading Jefferson’s words here in Virginia having visited Monticello just a few weeks ago – not that another reader could not have benefitted just as well or better from the reading. But it did get me thinking again about Chapter One and the information that so much material is easily available to me because I am a 50 minute drive away from the Library of Congress. It is JUST NOT FAIR, that those who cannot afford the expense or time to travel to the Washington, DC area are not able to access those materials that are languishing in the swamp of indeterminate copyright.
