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Copyright law stands on counter-revolutionary bases, but it doesn’t have to

Writing by Paola Valentina. Illustration by Paola Valentina.

I think of the term “Intellectual Property” as a peculiar one. It would not naturally occur to me to deem my thoughts or intellect as an object I hold title to or possess; at least in the customary ways in which the word ‘property’ is summoned. Although people’s opinions on the term often differ, it has been argued useful to conceptualise the product of one’s intellectual labour as a ‘thing to be had’ when it comes to its protection. Nevertheless, revising our legitimations for IP Law would allow a shift towards the protection of the individual, rather than commercial interests. This is especially the case when the expression of one’s idea is used in a public context, and if the work in question is closely tied to the author or creator’s identity.

One of the most popular justifications for IP Law comes from natural rights theorists, who often cite Locke’s labour theory of property, mounting Intellectual Property as an extension of the subject matter from which natural property rights stem. This perspective, dominant in academic circles which legislators often consult, has easily led to a predictable motif: the balance for Copyright and IP Law has tipped in favour of private and commercial interests to the detriment of the public. Although Copyright laws have evolved massively from the days of the TRIPS Agreement and Berne Convention, national provisions will remain in this unbalanced momentum unless the very legitimations of IP Law are revised. IP Law, at its core, concerns itself with the protection of an author’s expression in a work - be it musical, dramatic, literary - meaning that it ventures beyond exclusively commercial spheres. The action of creating an art piece (which Lockean theorists deem to be akin to ‘labour done upon the land’), for example, implies personal style (which previous artists influence me?) and essentialist choices (fine or thick lines?). These decision-making patterns and personal experiences which may, either consciously or not, affect the output of creation may be difficult to empirically demonstrate, but are of great importance nonetheless. It gives rise to the fact that the creation of a work by an individual author inadvertently and intrinsically links the author’s identity to it in a way in which natural rights theorists neglect. We must widen discussions of copyright archetypes to include themes of originality - not only the idea that the authors’ action of creating results in something worth protecting, but also the permanent link that forever subsists in the produced work after this ‘action of creating’ is finished.  

Intellectual discussions on IP Law and protection should borrow from the Marxist and Hegelian theory of alienation (the idea that the stratified nature of modern capitalism leads to social alienation and prevents self-realisation). The multidimensional and problematic separation between the layman and their craft, of the worker from a final product, and the individual from the wider community and even their own purpose would be given an interesting revival in Copyright work dialogues. Copyright work creation, viewed in these theoretical frameworks, might seem the least alienating to the author by virtue of it being intellectual labour, not characterised by mechanised production. After all, what is more pure to an individual than their own ideas? And how may one be protected from being alienated from one’s own thoughts? Of course, this is a more metaphysical evaluation which must be grounded by the reality that it is the expression of the thought, not the idea itself, which merits Copyright. Additionally, this deliberation only explores cases of independent creators, or creators of IP works who are not sponsored by corporates. The issue itself is made more complex when it comes to IP creations in other realms, for example, when speaking of Copyright over databases with scientifically valuable information. Yet, the fact of the matter remains: the conversation of the future of IP Law must be tethered to public interest over private, and with the quick development of technologies, become more broad and also more nuanced.

The enforcement of the Statute of Anne in April 1710 that ended a vicious publishing monopoly echoes an original intent in British IP Law - to provide public interest to outweigh that of the corporate. This is a matter of urgency, as the UK prepares itself to revise certain IP Law provisions following their exit from the European Union. The guiding compass for IP Law’s legal reassessment must turn towards the layman’s favour as a matter of urgency, as natural theorist justifications have repeatedly demonstrated to be incapable of protecting the interests of the creator and wider public.

Sources used:

Creative Commons Licences, the Copyright Regime and the Online Community: Is there a Fatal Disconnect? Susan Corbett. The Modern Law Review Ltd 2011

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