What's in an analogy?

The US constitution grants Congress the power: to promote the Progress of Science and useful Arts, by securing for limited times to Authors ... the exclusive Right to their ... Writings Although he wasn't in the US at the time the...

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The US constitution grants Congress the power:

  • to promote the Progress of Science and useful Arts, by securing for limited times to
  • Authors ... the exclusive Right to their ... Writings

Although he wasn't in the US at the time the Constitution was drafted (he was in France), it's assumed that those words were derived from the ideas of Thomas Jefferson. When he wasn't off having a sly miscegenate in the dairy at Monticello (or a Paris hotel bedroom, as the case may be) Jefferson was also the first head of the US Patent Office and, in fact had a very healthy scepticism about what we now call “intellectual property”, in general.

Section 1(1) of the Copyright, Designs and Patents Act in the UK says:

  • “Copyright is a property right...”

There's a subtle but important distinction here. The US Constitution is essentially saying that to stimulate creativity, we're going to grant authors some limited rights. It never ascribes the term “property” to what is now frequently called “intellectual property”. The UK Copyright Act, right at the beginning, starts out by saying that copyright is property.

Or, to borrow William Patry's terminology, the former view is that copyright is a government programme. It gives some limited rights to creators, to stimulate creativity for the benefit of society as a whole.

The other view is that copyright is property, like a bar of chocolate or a car, with connotations of ownership, of exclusion of others, and of permanence (actually, in that case the chocolate bar is a very bad example, and the car is not too great, either).

The state can create a programme which involves the transfer of intangibles (carbon credits, for example), and the rights it attaches to those intangibles (for example the ability to sell them, mortgage them, assign them, lend them) can make them arbitrarily similar, as regards their legal characteristics, to property.

Or, it can declare something to be property, and then take absolute rights away. This is the case with land (or, as lawyers call it, real property): if you own a flat, in all probability, you own the leasehold, and you only have rights relative to the freeholder.

They may also be additional rights which other people have over your property, such a a right of way over your drive, or the right for other leaseholders to run pipes and wires through ducts to their flats.

In fact, technically, even freeholders of land don't own the land in an absolute sense: because of a peculiar remnant of the feudal system, the strongest title a freeholder can have, fee simple absolute in possession, is still derived from the crown, which is the “true” owner of the land. (And of course, ownership of land is still subject to compulsory purchase orders).

Imagine you're a free market crusader. It's a central tenet of your faith that property is good, and government interference is bad. Suddenly, depending on how you characterise copyright, it can be either a very good thing or a very bad thing.

And since, even after the meltdown, governments are still pretty much committed to free market ideals, whether someone adopts the “property” or “programme” stance can be very telling.

Thus, you'll find organisations like the RIAA, BSA, FAST and BPI talk a lot about “property”. And you'll find organisations like the Free Software Foundation railing against that characterisation.

It's also fairly telling that the organ of the United Nations which deals with these issues is called the “World Intellectual Property Organisation”, and that the relevant government agency in the UK is Intellectual Property Office.

It pays to listen carefully: freedom fighter, or terrorist? Programme or property? The terminology used often says more about the person who is talking, than the person they are talking about.


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