Everyone knows what property is - that portion of everything in existence a person owns. A house, a car, a refrigerator, stove and freezer, the microwave, the TV set, VCR and DVD player, the stereo system, the computer. All of these are examples of property, each piece possibly owned by an individual.
Then there is public property - government buildings, public roads, public parks, sidewalks, libraries. Those things that taxpayers pay to maintain and that are free for the public to use.
Another form of private property crosses the line into public usage - the commercial properties like stores, malls, restaurants and office buildings. These are owned by private entities, but, as a general rule, members of the public are not barred from entry.
When a private entity decides to sell something they own, the sale transfers ownership from the seller to the buyer, completely. While the sale may not be irrevocable, or may be further bound by laws or contracts, once the property changes hands, it is difficult for the original owner to change his mind and reaquire his former property. If you buy a new television, it is yours and Sears cannot come into your home to reclaim it and then sell it to someone else. If you buy a car, so long as you keep up your payments, you don't need to worry about the finance company changing the amounts or number of the payments.
Property concepts are easily understood - when dealing with 'real' property, those things that exist in the physical world. But what about when you start thinking in terms of Intellectual Property? Do the concepts of property break down when considering the aspects of something that has no 'real' existence?
I recently had occasion to talk to someone about what copyright is, what it entails and could not convince him that it wasn't a special form of property that is his (and his heirs) property simply because he thought of it. 'Real' property is yours until the moment you sell it, but he was convinced that 'Intellectual' property was still his, even after he sold it.
Judge Birch, in his opinion on 'The Wind Done Gone' said, "After the work was published, the author was entitled to federal statutory copyright protection if she had complied with certain federal requirements (i.e. publication with notice). If not, the work was released into the public domain. Id. The system illustrates that the author's ownership is in the copyright, and not in the work itself, for if the author had an ownership interest in the work itself, she would not lose that right if she published the book without complying with federal statutory copyright requirements. Compliance with the copyright law results in the guarantee of copyright to the author for a limited time, but the author never owns the work itself. . 202 ("Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied.")"
This statement, issued by a Federal Judge, clearly shows that IP is not some special form of property that one retains ownership of even after selling the work. Once copyright has been accepted, the work itself is no longer a form of property at all, unless that property now belongs to the public at large (those to whom the property was sold in exchange for the copyright.)
Even the copyright, however, cannot be considered 'real' property even though it is something the law allows to be bought and sold. Instead, it is a limited, government supported, package of usage rights. The rights to distribute and vend copies, the rights of control in public performances and displays, the rights to limit transformative and derivative works. This package of rights is not perpetual, but has a Constitutional requirement of limitation, past which the public becomes the sole owner and acquires all rights of use.
Property is something one owns, that can be passed down through the generations. One of the tragedies of modern farming techniques has been the sale of farms that those living there could trace back to the original land grant, a long history of the land being passed from father to son to grandson, down through the years.
Intellectual property, on the other hand, is not passed down through familial lines. Instead it has always moved from master to apprentice to their apprentice in turn. The true inheritors of Shakespeare are not his genetic descendents, but those who have been inspired by his work, those who build upon what Shakespeare left as his legacy, like the grandson would plant and harvest from the land of the farm he inherited. To pass along IP in terms of 'real' property steals the inheritance from the creators of today and tomorrow who might otherwise build upon those works to make more and greater works, giving them instead to people who, for the most part, are hoarders, unwilling to allow new and innovative uses of those thing they own copyright in.
In every way to look at the concepts of private property, IP fails. Copyright owners claim ownership in the work even after it has been rightfully sold - property concepts show that something sold is not retained by the originator. Copyright owners claim that unauthorized copying is theft - property concepts show that the theft of property leaves the owner bereft. If the mere act of creation was enough to claim perpetual ownership, then all property would be owned by the creator - buying and selling of property would not occur in any aspect.
What difference is there between something created by the hand and the mind? Why is one 'real' property and the other not? Why should one be considered a one time sale, and the other a monopoly controlled by Congressional legislation?
The answers are simple in the concepts of property. Property that is created by the hand is something limited by 'real', physical world, limitations. It takes materials to build as well as the time and skill of the builder. When the builder sells that creation, he doesn't have it anymore and must go through an identical amount of work to create another identical piece for himself.
Property created by the mind is only time and skill or imagination of the builder. There are no physical limitations to these creations - they can be replicated at little effort endlessly. When the builder sells an intellectual creation, he loses nothing - still possessing the entirety of the original. He never needs to build another to have one of his own.
The question I don't have an answer for is why people believe this singular effort is worth so much. Current copyright term lasts the life of the creator and 70 years more. If the work is a failure, this amounts to almost nothing for the author and his heirs, but potentially a great loss for the public. If the work is an ongoing success, this amounts to a return far greater than the time and effort would qualify a real- world builder to acquire. As little as a couple hours (or even a few minutes) might enable the creator's great grandchildren to collect royalties in excess of an average yearly income.
To accept this as some sort of special 'property right' is not only wrong, but damaging to current and future creators - those who should inherit the works for creative re-use. Allowing hoarders a government supported monopoly in something that can effortlessly, and at almost no cost, be distributed to the entire world, walks on the ideals the United States was built upon, the limiting wording of the Constitution, needlessly restricts freedom of speech, and treads upon the Constitutional mandate that no title of nobility should be granted. Allowing royalties to be passed down through generations comes very close to that prohibition.
Creators need to be compensated for their efforts; I do not argue against that compensation. But this is compensation for what they have done, not because we wish to rent their property. Copyright is the traditional medium of the transaction between creator and their audience. Individual copies are sold during the period of payback, a method which gives people the power to decide who will be rewarded the most for their efforts. Those creators who catch the attention of their audience will be richly rewarded, while those who pubish lesser quality works, or badly marketed works, will see only a small reward. During this time, the Copyright Office holds the work in trust until the copyright has expired - and the contract between the public and the creator is completed, the purchase paid in full, the property of the public, free and clear.