One of the biggest triumphs of capitalism lies in having created the impression that it’s a natural system. A non-specialist, when considering other times and societies, will almost certainly interpret them through the prism of capitalist assumptions: transferable property, free trade, labour, wages, and so on. This state of affairs, however, took considerable violenceto achieve. Just as feudal regimes which were installed as the Roman empire fell, the rising of the bourgeoisie as Europe’s and the world’s new ruling class required major dislocations not only to an economic system, but to the worldview which comes embedded with it. So when looking at feudal property arrangements, we’re likely to try to substitute modern categories like property and rent for the more historically accurate feudal forms thereof, which entailed a complex bundle of rights and duties we can scarcely imagine today.
This process of expropriation and disolution of feudal relations and the resulting imposition of bourgeois property took place, in the UK, through many legislative acts, but more specifically through the “enclosures” and “clearances”. The former were
decrees by which the landlords grant themselves the people’s land as private property, decrees of expropriation of the people. As Marx points out, enclosures led to the usurpation of ancient communal land holdings, which had been preserved under the guise of feudal relations, by the great landlords who sought to inherit the position of those feudal lords, without any of the constraints they had been subject to. Clearances went further: instead of usurping the communal holdings, clearances swept tenants off their cottages, often by means which can’t be described in other terms than terrorism. Thus the estates were freed from common ownership and feudal encumberances, and those who dwelt on them from their means of subsistence, giving rise to the free trade in agricultural lands, the pauperisation of independent farmers, and the formation of the urban proletariat, deprived of anything but their labour power, ready to serve the voracious needs of incipient industries.
A similar case obtains for intellectual property. The fact that certain goods had not hitherto been subject to the discipline of the market won’t be seen by the bourgeois as anything but an opportunity.
Before intellectual property
Some authors try to seek the first precedents for intellectual property in certain provisions of Roman law, or mediaeval legal decisions. While there may be points of similarity, it would be applying entirely erroneous categories. Before the development of the printing press, it is hard to speak of authors’ rights or copyrights sensu stricto. Manuscripts were routinely copied, by specialists who got paid piecework wages, or monks who were paid through more complicated arrangements or not at all. Copying was expensive, and the difusion of written works depended entirely on this caste of skilled workers.
Roman law understood the difference between the material support of a work (such as stone or papyrus) and the work itself which was created through specification–literally, the making of new species. It had provisions for cases where the ownership of both may not have coincided, a contentious matter in the different schools of Roman jurisprudence: Justinian’s code solved the problem by giving the ownership of such works to the specifier, that is, the intellectual creator, if the new species was irreducible. Compensation was, of course, due to the owner of the substance. This was a right which could indeed be claimed by an author of a work, but it could just as easily be claimed by a copyist. Roman book trade was largely unregulated, and authors were moved by reasons which aren’t easily reduced to money, although fame and renoun could be useful in their own right, so we mustn’t ascribe literary creation to exclusively altruistic reasons.
In the Middle Ages, a case arose regarding the right to copy manuscripts in Ireland, which was judged in favour of the manuscript owners, but not the authors. The judgement stated that
to every cow belongs her calf, therefore to every book belongs its copy. Similar cases arose regarding Church property of sheet music, but the protections which existed were clearly not comparable to modern authors’ rights.
The printing press
Without intending to exhaustively recapitulate the whole history of copyright, the development of printed codices in Europe revolutionised the prevailing conditions of production of books. They still took considerable skilled work–though much less per copy, and a greater investment of capital. Such a change, perhaps in conjunction with the religious and political controversies at the time, led to the development of publishing monopolies, devised as mechanisms for censorship. It is at this time that the notion of imprimatur–a licence to print a work–arises. These licences were granted by the Catholic Church or the princes to given printers.
Over time, printers formed guilds and acquired a considerable amount of influence, though they often lived in an uneasy relation to the church and the state. With the relaxation of censorship and the appearance of many new works which presented few religious or political implications, the printers sought and gained guild privileges, and individual privileges to monopolise the printing of given works in perpetuity, without any sort of compensation to authors. This rather rapacious arrangement didn’t last forever, though, and eventually legislators recognised the creative role of authors, granting them the exclusive right to print their works, which they promptly sold to publishers, often for very little. However, a legal construction which begun as a means to constrain the public’s access to dangerous ideas, had transformed, first, into a guild’s privileged monopoly, and, later on, into a new form of property derived from the creation of a new work.
The modern forms of intellectual property
It is remarkable that, after abolishing all mediaeval monopolies and privileges, one of the first tasks of the French Revolution was reestablishing authorial rights. From this time on, we could say the development of intellectual property was grounded on at least 3 very different philosophical foundations: in the anglosphere, the Lockean notion that mixing one’s labour with materials should result in property rights; in the continent, the notion that authors have an intimate connection with their intellectual labour as part of their personality; and, later on and especially in the USA, the consequentialist view that exclusive rights for authors will lead to useful intellectual works to advance the sciences and arts.
A fairly similar, but much faster development, took place when techniques were discovered to record music, pictures, and moving images. Today the logic of these rights extends to technical processes and products through patents, including things which already existed in nature, semiconductor designs, brands, shapes of products (industrial designs), broadcast rights, and an ever expanding plethora of ever finer-grained monopolies.
These positions have made of copyright a moral issue for many, and have made it somehow inconceivable to some that intellectual creation would occur without such a system. This view, which is oblivious to historical experience, is well described by Eben Moglen on his essay Anarchism Triumphant:
When we reach this point in the argument, we find ourselves contending with the other primary protagonist of educated idiocy: the econodwarf. Like the IPdroid, the econodwarf is a species of hedgehog, but where the droid is committed to logic over experience, the econodwarf specializes in an energetic and well-focused but entirely erroneous view of human nature. According to the econodwarf’s vision, each human being is an individual possessing “incentives,” which can be retrospectively unearthed by imagining the state of the bank account at various times. So in this instance the econodwarf feels compelled to object that without the rules I am lampooning, there would be no incentive to create the things the rules treat as property: without the ability to exclude others from music there would be no music, because no one could be sure of getting paid for creating it.
But even more relevant is his paraphrase of Faraday’s law:
So Moglen’s Metaphorical Corollary to Faraday’s Law says that if you wrap the Internet around every person on the planet and spin the planet, software flows in the network. It’s an emergent property of connected human minds that they create things for one another’s pleasure and to conquer their uneasy sense of being too alone. The only question to ask is, what’s the resistance of the network? Moglen’s Metaphorical Corollary to Ohm’s Law states that the resistance of the network is directly proportional to the field strength of the “intellectual property” system.
Perhaps even more puzzling is the defence of intellectual property from the left, at least speaking broadly. Most social democratic parties seem to be subscribing to this poisonous maximalism, on the grounds that intellectual property can be created de novo by poor people and hence is some sort of grand equaliser. An elegant abstract construction, no doubt, though how the aforesaid poor people are to have the means (time and equipment, but also education and skills) to create such property, and then the means (networking, contacts, business savvy) to exploit it is left, so to speak, as an exercise for the reader, while millions suffer preventable and very concrete deaths due to the pharmaceutical patent situation.
The Soviet Union itself had an intellectual property system. On the one hand, copyright was recognised for authors, though unlike in the bourgeois democracies, it was limited by a large set of exceptions and compulsory licences, as well as significantly shorter than we’re accustomed. For instance, copies for private use were allowed for free, since copyright was understood as an industrial regulation. Such a system avoided the actual danger, which is paradoxically taking place under an otherwise draconian copyright regime, that the labour of individuals could be effectively exploited without due compensation. This is Facebook’s business model, of course. There are potential issues with unpaid labour and deskilling when corporations or even public-spirited projects such as Wikipedia effectively function on people’s free labour, an issue which also affects much of the software industry.
On the other hand, instead of patents, which grant their inventors exclusive rights, the Soviet Union bestowed certificates of invention, which allowed their holder to receive due recognition, as well as economic compensation, without hampering society in using the new development as broadly as possible. It is notable that the patent system is becoming sufficiently dysfunctional that some bourgeois economists are suggesting the state should bid for patents as a matter of course.
The Internet is making much of this moot. Whatever laws are passed, it is becoming increasingly difficult to even pretend to police copying. After all, that’s what computers do. The ill-fated attempts are leading to a widespread delegitimisation of the system as a whole, that can’t but hasten its end. As Cory Doctorow points out in an article I highly recommend reading, the music industry has defrauded the composers it so constantly claims to defend so grossly and blatently that its moralising only engenders laughter. Furthermore, music is an ancient thing: something humans do. For a while it became a redoubt of experts with expensive equipment, but there’s little evidence that this situation is sustainable. The same for stories, and their many concrete incarnations: books, films, theatre plays…
Ultimately, liberating ourselves from the shackles of intellectual property is more than an economic consequence of cheap and easy copying, but it rises to the level of a civic duty: in a world where everyone can have all works of beauty and utility they may wish, to ration them to those who can afford payment is the act of a tyrant. Such a practice is, in sum, on the wrong side of history.