Skip to main content

Justifications for Intellectual Property Part 3: Self-Expression Justifications


The third dominant justifying theory for intellectual property rights is often called the Self-Expression justification. Most scholars attribute it to Hegel, but it ultimately has roots in Kant. While few philosophers even addressed intellectual property, Immanuel Kant discusses the sale of pirated books in Metaphysics of Morals. Kant argues that reprinting a book after first publication is a violation of the author's right to entrust his communication to a particular publisher. Viewing books as importantly communicative, not material, in nature, Kant claims that a publisher is essentially a spokesperson, someone designated by an author to communicate his ideas to others. Reprinters interrupt this process by taking it on themselves to communicate the author's idea, without his consent. Reprinting is then akin to removing the author's control over the communication of his ideas. While Kant's argument does not get you an entire system of intellectual property, he does draw an association between books, and we can broaden it to include all media, and expressive acts. A book is not simply an object; it is a vessel for ideas. It is the contents of the book, the ideas rather than the material object, that make reprinting a moral issue.

Now, the Self-Expression justification proper comes from a later German Idealist thinker, G.W. F. Hegel. Hegel viewed private property as necessary for the actualization of the will. A rational agent needs a domain in which it can exercise its will so that it can come to understand itself, its autonomy, it's place in the dialectical progression of history. Private property is this domain, so one must understand property not in terms of things owned, but in terms of what those mean to the owner. Intellectual property is an especially interesting case because creative works and inventions are specifically products of rational agency. Creative works serve as expressions of the author's will and reason, so any violation of the work must be understand as a harm to the integrity of the author.

As spooky as some of this might sound, European copyright law recognizes certain “moral rights” of an author. These rights, such as the right to receive credit for authorship, never expire, and bear no exceptions. If interpreted broadly, the Self-Expression justification is perhaps the best argument for an author retaining strong control over derivative works. A fan writing using an author's character in a story takes the character out of the author's control. Something very personal to the author has been manipulated without his knowledge or consent. If some readers confuse for the fan story for the author's own work, they might develop a distorted idea about the author's style and personality. These threats are intolerable on a strong reading of the Self-Expression justification. Now, I hold that there are other concerns at stake that override any sense of threatening the author's integrity, but that's a paper I'm currently trying to publish.

The most obvious concern with the Self-Expression justification is its failure to justify a wholesale system of intellectual property. If you don't see what I mean, think about it like this: you have a lot of furniture in your house. Some pieces you might have had growing up, some you might have gotten from friends or family members, and some you just bought because you needed them. Now, imagine that one morning, you woke up and found that your ottoman, the one that you bought for the cat to sleep on, is missing, and in its place is a pile of money, enough to buy a brand new ottoman. Substitute any personal object you own and don't really care about and mutatits mutandis if the furniture example doesn't work for you. The Self-Expression justification is very plausible when talking about the dining room table you got from your grandparents' house, but much less so when considering that ottoman.

Intellectual property is no different. Some authors pour their hearts and souls into novels, poems, musical compositions, or films. Others are just interested in making money and happen to be very good at what they do. I'm sure many authors find themselves in both categories from time to time. Nevertheless, the Self-Expression justification has the most force when the work has the most personal meaning or significance. When a creative work is an economic product, it's not clear what rights an author would have. One could treat all authors as if their works were expressions of their innermost selves unless they waived their rights somehow (though the moral rights in European intellectual property law simply cannot be waived). In that case, the practice would be instituted for a reason that does not universally apply. Furthermore, it seems bizarre to imagine an intellectual property case being decided in favor of a defendant who argued that the plaintiff “did not really care” about his works. I would hope it isn't the law's place to dictate to us what is art (though they do seem to try), so the Self-Expression justification is only a partial justification for an intellectual property system. Nevertheless, it does get employed in argument about derivative works and fair use.

Comments

Popular posts from this blog

RPG Systems: An Analogy with UI Design

The current game in our weekly role-playing group is Deadlands. The previous game was Shadowrun. Both rule systems lie closer to the “chunky” side of the spectrum. Shadowrun has a particular reputation for its complex and somewhat cumbersome rules, and while Deadlands has less overall complexity, the system has a degree of granularity that interrupts play more often than it enhances narration. I enjoy role-playing games because I like participating in a good story. The rules system provides a set of constraints for the characters, the setting, and the conflicts. They help give the narrative structure, a background against which the story will take place. Too few rules, and telling an interesting and well-developed story becomes difficult. Too many rules tend to get in the way of individual scenes or events. With the right balance, it’s possible for the game master, usually me, to be sufficiently fluent in the rules system to resolve any conflict without extended consultation of on

The Incredible Lightness of Collaborative Consumption

Last week, we had to exchange our defective futon frame for a new one. The store didn't want to cover transport cost in either direction, so we had to figure out how to get our re-boxed frame from Mountain View to Los Altos. If we had a car, it would not have been very simple since we were aiming to buy a small sedan, nothing that can easily carry the frame and its box. Fortunately, we have a car sharing service that gives us access to a range of vehicles, including a van stored down the street from my building. After work, I grabbed the van, picked up the frame at our place, and then Tara and I drove to the futon to make the swap. I dropped off Tara and the new frame at our place, and then headed back to campus. On returning the van to its parking space, I hopped on a shuttle back to downtown Mountain View. We were able to do all of this because we're not tied to a specific vehicle for all of our transportation needs. The last car we owned was a van, and it came in handy o

Carless in California

For various reasons, we do not own a car despite living deep in American car country. The reasons are largely financial; the cost of living in downtown Mountain View crowds car ownership out of our budget. We pay more to live in a pedestrian friendly neighborhood, so we are less able to afford a car. At the same time, I don't need a car to get to work, and Tara doesn't drive, so any car we had would sit in the carport most of the week. Combine that waste of resources with a reluctance to contribute to the Bay Area's traffic congestion, and forgoing car ownership doesn't sound all that bad. Car sharing services allow us to grab a vehicle as long as we plan ahead a bit. The Caltrain provides access to San Francisco. There are convenience stores and cafes in walking distance, so we don't feel the absence of a car too often. Last night was one of the few times where I did. After getting home from work, we wanted a dinner cheaper than nearby delivery options. The n