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L. Neil Smith's
Number 589, September 26, 2010

"Why do creators create?"

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Sacrificing the individual to the nature of the state—sheep in wolves' clothing
by Cathy L.Z. Smith

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Attribute to The Libertarian Enterprise

The "neolibertarians" over at the Ludwig von Mises Institute who appear set on courting the libertarian left have taken it upon themselves, led into battle most notably by Jeffrey Tucker and Stephan Kinsella, to declare that those who are advocates of liberty may not, by definition, be in favor of what have been termed "intellectual property rights". Of course this proves, in the twisted logic of the beneficiaries of their largesse, that anyone who asserts their right to own and control their intellectual property is, by definition, "a statist asshole".

One basis for their argument consists of the mantra (a sound, syllable, word, or group of words that are considered capable of creating transformation) that "ideas" are not scarce, and cannot, therefore, be considered property. Leaving aside the notion that scarcity is the only, or even predominant, basis for the identification of something as "property" there are more pressing problems.

The issue does not have to do with "ideas", per se, as has been explicitly and exhaustively stated (though equally explicitly and exhaustively ignored). No IPR advocate with whom I am acquainted has intimated in this debate that the idea of, for instance, liberty is any way "protected". Nor has anyone argued for the protection of anything identified as indisputable fact. (A "law" of nature, for instance, is a description in human terms of a process that works whether humans have identified it or not.) The remarkably lame reductio ad absurdum represented by Kinsella's Galt-Magnon argument—that intellectual property rights would prevent anyone beyond the first housebuilder from ever building a house—serves to muddy the waters and shut off the debate while simultaneously demonstrating either a disturbing inability to conceptualize or downright dishonesty.

What is at issue here is the "distinct and unique expression of ideas" that arise from the act of authorship. Does an author draw on the work of others? Undoubtedly and unquestionably. Does the author acknowledge the influence of others on his work? In an academic setting, absolutely yes, or he's looking for another job; in the setting of a work of fiction, yes, particularly when one cites passages of significant length and uniqueness from one's fellow authors. The "source" of an expression can, in and of itself, provide valuable insight into the expression based on the scientific, behavioral, and cultural constraints within which the creator operates. Examination of sources can shed further light on hypotheses, but it can also illustrate deficiencies, evasions, and failures of omission. The source, then, is an integral, important, and recognizable (both morally and financially) element of the expression.

Does one owe attribution when one's own unique expression is a synthesis of the multiplicity of experiences and ideas that make up one's life and philosophy? Unless one is quoting directly [quotation: a passage or expression that is reproduced or cited] probably not, however, many authors do recognize those who have influenced them (out of courtesy rather than necessity) on dedication pages, in appendices or footnotes, or through various acts of homage within the work itself .

So, the question arises: can we identify "uniqueness of expression"? Clearly it is more difficult to do so in the case of short phrases in common usage, though that, in and of itself, is not a sufficient argument for exclusion. The case becomes clearer as the concepts become more complex and the expression of ideas becomes increasingly subject to interpretation based on the character and experiences of the author. A body of work created over the lifetime of an author has recognizable properties—themes, settings, characters, venues, coinages. Those items can be so subtle as to go almost undetected, but they might as easily be unquestionably recognizable. An author (and his customers) come to rely on those qualities as a mark of the experience one might reasonably expect from reading a work attributed to that author. The unattributed use of another's work constitutes a fraudulent act, depriving the customer of expected value (for good or for ill), and depriving the author of the recognition (financially and historically) he has striven to achieve through his body of work..Financial arguments to one side, authors have a right to expect attribution of their expression.

Why do creators create? Because, in many instances, they are driven to do so. Is that sufficient reason to deny them the ownership of what they create? Should they be compelled to stop creating, create only for their own satisfaction, or turn their creations over to society, expecting neither compensation nor recognition? Does their ability to create make them a natural resource to whatever power-hungry (or cheapskate) mob is currently in control?

Yet another reason those who oppose the recognition of intellectual property rights cite is the necessity of defending those rights by "the force of the state". I maintain that no such enforcement is necessary. I'm more than willing to provide such protection either by myself, or through a private contractual agreement. One minor problem, however, is that we are all caught, currently, in the social mode of existence that looks to the state as arbiter. The fact that the state uses force to enforce laws is not sufficient reason to ditch the notion of intellectual property. The fact that the state has used legislation related to copyright to extend its reach (and the reach of those sanctioned by it) is a reflection on the nature of the state and its clients, not on the nature of the property being defended. Truthfully, if someone steals your car, who do you call? Do we simply chuck our disapprobation of murder because the consequence of its commission can, and typically does, involve the state whether we want it to or not?

But I offer yet another reason to recognize intellectual property: if one may be incriminated based on one's words (moral ownership), why must one not be equally entitled to their benefit (economic ownership)? Do we "own" only the bad acts that we commit and not the good?

The assault on intellectual property rights is an assault on all property rights. No "property rights" exist in the absence of the intellectual exercise (cognition) that leads us to conceive and define them. And so, in fact, all property rights are intellectual property rights.

If one examines the arguments regarding abuses of intellectual property rights, one must acknowledge that the most common factor in those abuses is the existence of, and power exercised by, so-called "artificial persons"—be those entities "the state" or its bastard offspring "the corporation". In both cases one is confronted with the legal fiction that a conscienceless "collective" can somehow act in a manner consistent with the behavior (morally and ethically) attributable to an individual human being. The fact that these artificial persons do not, and in fact cannot, be human is a source of great mischief and injustice. A collective, regardless of how you label it, is not and cannot be, a morally responsible reasoning entity. An artificial person is a legal construct whose ostensible purpose is to allow "many to act as one", while simultaneously protecting that very same many from the consequences of those acts. Such "creatures" exercise an alarming and unquestionably damaging control and influence over our lives today. Yet if one strips away the legal fiction, both the state and the corporation are merely mobs, and as such are subject to the modes and manners of behavior that accompany any mob bent on achieving its goals.

And so I maintain that the issue with intellectual property rights is not that the recognition of such rights is in any way damaging but that the entities that currently control those rights are not, and should not be, the entities to whom those rights can "belong". A corporation does not "invent" or "create"—just as a state does not "protect" or "defend". Those are the actions of individual human intellectual and physical effort, alone or in voluntary concert, and any rights that accrue should be vested not in some "artificial person", but in the individual or contractually-bound individuals who caused them to come into existence.

I hereby propose, then, that intellectual property rights should vest solely in individual human beings—natural persons. That they may be sold or willed to other natural persons, and that they should exist in perpetuity until and unless they are released by their rightful owners into the public domain. Their use may be licensed to another person, or even to a corporation, but the corporation, the "artificial person" may not, under any circumstances, own the property rights themselves. If the heir of an author keeps that author's works in print and available to the world, why should that ownership ever expire? The deed to physical property has no expiration date—yet surely there's a corporation or governmental entity out there that could do "great things" with the family farm. New definitions of "abandoned property" will be necessary—say, for instance, if the heirs allow the work in question to remain out of print for a fixed period of time the work could become public domain. These are questions that need to be answered—but the truth is that ownership of intellectual property is no more or less "inconvenient" to those who wish to seize it than is the ownership of any property.

It would, indeed, be tragic if this movement that has recognized the fatal impropriety of allowing a collective to seize our lives, liberty, and property now succumbs to the temptation to justify the seizure of the human mind and its products instead. I find it both interesting and ominous that the very movement that has praised itself as the defender of voluntary human interaction has unleashed its increasingly meager intellectual prowess on the idea of collectivizing the products that result from that most human of qualities—namely independent thought and the products of that thought.

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Cathy L.Z. Smith is currently working toward a bachelor's degree in history, with a minor in anthropology.

This article is one of a series:

"Let's Play Nice"

"Misapplication of the notion of 'public goods' and the author's extinction paradigm"

"Time—Going, Going, Gone"


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