On December 10, 2019
Ownership of Ideas vs Free Access: How far are Copyrights Justifiable Against Dissemination of Knowledge?
This article aims to trace the origin and development of copyright. It further aims to analyze the concept of ownership of ideas in light of the theories of property right propounded by John Locke and other eminent theorists. The article continues by showcasing arguments for both authors’ rights and public domain with respect to proprietary interest, equitable distribution of ideas and dissemination of knowledge. The discussion is based mainly upon the theoretical aspect of intellectual property rights.
The realm of knowledge governs the abstraction of what is known as an idea that vacillates from one intellect to another. The ‘knights and guardians’ representing the law of this realm aim to protect such minds and reserve their rights, but is it justifiable to treat such abstraction as property? Can ideas be owned? Can they be borrowed? Can they be sold? While these questions encircle the basic paradigm of property rights, how can they be translated into the domain of intangible property? Let us take ourselves back to the Battle of Booksellers and discover the origins of copyright.
Brief History of Copyrights
The origins of copyright date back to seventeenth-century England. The printing press had been invented and literary endeavour flourished. However, there was a heated debate regarding what Samuel Johnson referred to as “the great question concerning literary property”. Only books registered with the Stationers’ Company could be printed and only then within the guild. This amounted to a form of censorship as well as restrictive trade practice. It also deprived authors of whatever natural law rights they might have had in their works. The English censorship laws expired in 1694 and the Stationers lobbied for relief from the restrictive competitive environment in which they found themselves. The response was the Statute of Anne which awarded the author of a work the right to control copies of that work for a period of 14 years, which could be renewed for another 14 years.
Meanwhile, there was an ongoing debate amongst lawyers and intellectuals over the nature of copyright. William Blackstone espoused a natural law theory of literary property, adopting the Lockean perspective, according to which a person would be entitled to the ‘fruits of his labour’ and an author would be entitled to the profits to be made from the commercial exploitation of his own creation.
Lockean Labour Theory
John Locke’s ‘labour’ approach is relevant to justify the acquisition of property rights over intellectual ideas. The theory propounds that economic activity involving ideas results in a mixture of one’s labour with one’s ideas, thereby making the idea to be one’s property. In this sense, a writer’s interest is considered sufficiently important in itself from a moral point of view to justify excluding other people from owning or promoting it.
Bentham’s Utilitarian Theory
Jeremy Bentham’s utilitarian approach also provides a perspective. He asserts that the state should create property rights because it is advantageous for the society. When the state does not create and protect private property, it leads to the “four evils”.
On the other hand, Hughes asserts that the “field of ideas seems to expand with use.” He argues that unlike food, ideas are not perishable and therefore always retain future value.
Jurisprudential Argument: Millar v Taylor (1769)
Millar v Taylor required the Court of King’s Bench to decide whether the common law of property incorporated an exclusive right to make copies of literary compositions. The question forced the Court to consider the nature of property rights and the rights of authors. Among the questions raised, one was whether ideas could be owned. Justice Yates delivered a powerful dissenting opinion and argued that nobody could own the idea while Lord Manfield thought that a copyright was “a property in notion”. In this case, the representation of the author as a proprietor depended on Locke’s notion of the origins of property.
So far copyright has been viewed from an author’s perspective, but free access to knowledge and the public domain argument should also be considered. Contrary to the legal enforcement of access control, the open access movement is based on a premise of knowledge dissemination.
This is the argument that authors owe much to the public domain. Naturally, the ideas that authors “generate and own” have been adopted from the public domain, which includes language, culture, genre, and experience, etc. Yen and Litman assert that since authorship is not an individual effort, the author should not be the sole person to be rewarded, without some token of appreciation to others involved in the generation of ideas. Moreover, there should be no obstacles for the less fortunate to access knowledge and information. Unlike physical property, knowledge does not deplete, rather expands in the process of creative exchange. Knowledge should not be confined in the shell of pecuniary interest, instead it should be shared freely with others. In this context, copyrights may hamper the growth and development of society if access to knowledge becomes the privilege of the wealthy only.
In light of Locke’s labour theory, labouring on creative work justifies one’s entitlement over the intellectual end product. This is because labouring on intellectual ideas is perceived as an economic enterprise, just like any other physical endeavour. Those who exert their energy in the creation of intellectual work must on the basis of their labour be entitled to claim ownership over their brainchild. Since authors invest both their time and money, they should have the protection to reserve their rights under copyright laws. Moreover, once those ideas are in the form of an expression, rights in them undoubtedly hold more value.
So are copyrights justifiable against free access to knowledge? The debate might be a long one but there has to be a middle ground to ascertain the rights of authors as well as the public. It should be recognized that not every idea can be owned. Some of them are borrowed while some of them can be protected under legal birdcage mechanisms. It goes without saying that authors do borrow from existing works in the creation of new ones. While Locke’s labour theory cannot be ignored, equitable solutions should nonetheless be followed by either narrowing the scope of expansive rights through limiting their duration, or by constructing mechanisms to prevent or control the abuse of those rights.
 Peifer, Karl-Nikolaus.“The Return of the Commons – Copyright History as a Common Source.” Privilege and Property: Essays on the History of Copyright, edited by Ronan Deazley et al. 1st ed., Open Book Publishers, Cambridge, 2010, p. 350
 David I and Bainbridge, Cases and Materials in Intellectual Property Law, 2nd ed. (Financial Time Pitman Publishing), p. 4
 R. Varian, Hal. “Copying and Copyright”, Journal of Economic Perspectives, Vol. 19, No. 29, Spring 2005, p. 122
 Supra note 2, p. 5
 Ida Madieha Bt. Abdul Ghani Azmi. “The Philosophy of Intellectual Property Rights over Ideas in Cyberspace: A Comparative Analysis between the Western Jurisprudence and the Shari’ah.” Arab Law Quarterly 19, no. 1/4 (2004): p. 194
 Stengel, Daniel. “Intellectual Property in Philosophy.” ARSP: Archiv Für Rechts- Und Sozialphilosophie / Archives for Philosophy of Law and Social Philosophy 90, no. 1 (2004): p. 50
 First, that people are deprived of the pleasure of ownership; second, that one experiences pain on losing something that is otherwise a part of one’s hopes and expectation; third, the fear of losing what one currently owns and fourth, that the knowledge of the possibility of future ownership provides an incentive to labour. Jeremy Bentham, The Theory of the Legislation (Oceana Publishers, 1975, 70-71), as cited in Supra Note 5: p. 193
 Supra Note 5: p. 195
 Justice Yates perceived this way, “I have an idea. Whilst I keep it to myself it is mine. But now I communicate the idea to you. It is now our idea. I cannot stop your mind from working on the idea or using it. Because I communicated to you, I had no intention that it should be solely mine. The idea becomes the common property of me and you, putatively, of all mankind.”
 Ibid. p. 7
 Supra Note 8
 Supra Note 5: p. 197
 Supra Note 5: p. 195
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