The curious metaphysics of copyright

Written by Andrew Rens on December 2nd, 2010

Although or perhaps because both the Enlightenment and its successor Modern projects sought to eschew metaphysics, one of their most characteristic (creations/something that is both produced and producing) copyright relies on a curious but little examined metaphysics.

Copyright, as every law student knows (or should know) does not give anyone the power to exclude others from using ideas or facts. This is, or at least should be, unsurprising. For something to be regarded as a fact it does not need to be “creative” but simply to be factual. ‘Creativity’ with facts is usually regarded as a bad idea. Fraud involves some ‘creativity’ with facts as do many other kinds of dishonesty, which are immoral if not illegal. Ideas, like facts are the common currency of human communication.

Permitting a person to control an idea, and invoking the coercive power of the State to enforce that control is obviously problematic. Why obviously? Attempts to control ideas, whether by public or private parties is censorship, an unwarranted intrusion into freedoms of belief and expression which is central to open societies. There is however another more subtle point.

Its easy if we have an idea that strikes us as important to fondly imagine it to be unique. History teaches us that there is very little which has not been thought, and recorded before. We are not as original as we may often hope to be. Closely related to this is the difficulty which a judge would encounter in determining whether two ideas are the same. If ideas are somehow separate from their expressions* then the difficulty is in determining whether the ideas are the same without resort to their expressions. How can a judge determine that what you mean by your “idea” is the same as the “idea” which I now have, apparently through copying. Are two completely different expressions the same idea in the abstract? Are the ideas identical or just similar? Are there yet other expressions, not yet expressed which could also be covered by the abstract idea? Its readily apparent that asking judges to ascertain if one person has copied another’s ‘idea’ involves judges resolving difficult questions about the nature of consciousness, the relationship between minds and bodies, basically all the big questions in the philosophy of mind. Comparing two expressions of ideas such as two books, while it raises some practical difficulties which require judgment is a lot simpler. For the purposes of judicial economy alone polities chose to grant exclusive rights not to ideas but to expressions of those ideas.

*Of course if someone were to contend that its not really possible to distinguish between ideas and expressions then that person cannot complain when copyright protects only expressions.

 

ACTA: damp squid or mutant octopus?

Written by Andrew Rens on November 20th, 2010

My friend and colleague the Technoloma claims that ACTA has turned out to be a damp squid. He and I are in agreement on many issues, but this is an issue on which we come to different conclusions.

The reason that technollama gives for concluding: “at the moment it seems like the worst has been taken out of the agreement” is that the agreement as it now stands, and as technollama reads it, does not require statutory damages for copyright infringement, nor do the indisputably worrying intermediary liability provisions require 3 strikes style policing from Internet service providers.

However from the perspective of developing countries, a perspective which I’d expect technollama to understand and value, these are not have and have not been the primary problems with ACTA.

Instead there are a host of other problems with ACTA which will immediately hurt the poorest people in the world. I’ve set these out extensively in this working paper which is updated to take into account changes made to the draft treaty. Two of the most obvious are the squeezing of access to medicines and the future of the global intellectual property system. Already European customs officials are intercepting legitimate generic medicines being shipped through Europe to developing countries on the basis of spurious claims of trademark confusion. ACTA will require other countries to deprive poor people of medicines too.

In any event the mere existence of ACTA would if it is signed undercuts the legitimacy of WIPO and the WTO. It signals very strongly that not only are the developing countries unable to control the rent seeking of a few powerful corporations in their own countries but that they are willing to use their power to further that rent seeking in the rest of the world. This can only undermine the legitimacy of the global trading system, and a make a trade war more likely.