There is a contradiction in how we talk about the ownership of ideas. On the one hand, we speak of property rights over owned ideas (as with copyright and patents); on the other, we talk about shared works – such as free and open source software – having “owners” – by which we mean people who take responsibility for them. Thus, ownership has two distinct meanings: one rooted in rights, the other in responsibility. For physical property, the two are frequently allied; but in the case of creativity and intellectual works, property rights are often the enemy of responsibility.
The Case for Property
There are two main arguments for property rights. The first is that they are natural rights, deriving both from physical possession (I hold the deer, so it is mine) and from the inherent right of an individual to his labor (I killed the deer, so it is mine). Physical possession obviously does not apply to ideas, so I will not pursue that line of reasoning here. And because new ideas are always based on and difficult to disentangle from old ideas, the right to one’s labor is as often in conflict with the ownership of ideas as it is in sympathy with it.
The second argument for property rights is typically framed in economic terms. Because the owner of a thing has exclusive right to the use of that thing, there is an incentive for her to make the best use of it. Ownership captures both the benefits and negative consequences of such use. For example, if I own a pasture it is to my benefit to graze many cattle – but not to over-graze, for if I did the pasture would be ruined. When the land is open for use by all, however, each individual has an incentive to over-use the resource, and it is likely to be ruined.
This second argument is broader and more significant when stated in moral terms: ownership encourages responsibility1. The negative externalities of overgrazing are lessened by ownership, for owners are more prone to take responsibility. Similarly, home ownership is thought to be good for society because owners take better care of their property and their neighborhood than do renters. On the flip side, responsibility can be taken as the basis of ownership. In the case of squatter’s rights, the act of taking responsibility for a piece of land over time becomes the basis for assigning rights over that land.
Unfortunately, property rights can also lessen resposibility. In reality, the things over which we claim rights tend to overlap the boundaries we attempt to build around them, while exclusive rights bar others from interference. Property rights over part of a river, for example, can permit the owner to pollute the river while preventing intervention by others.
The Ownership of Ideas
This difficulty with boundaries is especially applicable to ideas. Furthermore, often the benefit of using ideas arises outside the bounds of what we consider a particular idea or intellectual work. The development of radio technology, for example, was blocked by the patents held by various individuals and corporations. What we think of as a single technology was effectively divided into pieces, each of which was exclusively controlled. It wasn’t until the U.S. government stepped in and forced cooperation that this “tragedy of the anticommons” was overcome and the technology moved forward2.
Thus, property rights may actively discourage the effective use of ideas. A partial explanation may be transaction costs: the cost of implementing those rights can reduce efficiency. So the early failure of radio could be blamed on the cost and complexity of licensing patents Such costs are absent where there are no property rights; the benefits of property rights may be counterbalanced by the costs.
I suspect there is a more powerful explanation. For property rights in ideas erase an essential competitive feature of non-property arrangements – one which has much in common with the market3.
Control and Competition
Ideas aren’t like wheat or pork bellies or timber. They aren’t interchangeable. Because of this, property rights over ideas are monopoly rights. I can own a pile of wheat and not be a monopolist because wheat is also available from others. But if I have exclusive rights to Cinderella (for example), then I am the only source – there is no possibility of competition to provide Cinderella. Some competition does exist, in the form of different ideas, but it is far less than in a market of fungible commodities because ideas are not interchangeable or equivalent. Thus, the exclusive ownership of ideas creates a hierarchy of control, one which is subject to relatively few external pressures.
Ownership, as I have mentioned, also subsists in the commons, though here it is clearly tied to responsibility. An owner of a project, effort, or work in the commons is someone who husbands the process of creation and maintenance: who takes responsibility for it3. While exclusive property rights are legally encoded and enforced, ownership in the commons is socially determined. Because the commons is not exclusively controlled, everyone in the commons benefits from improvements to it. Ownership is the acknowledgement and respect afforded by those who benefit from the responsibility and activity undertaken by the owner.
The key is the tension between the benefits of cooperation and the possibility of division. Members of the commons participate because they benefit from the efforts of others. Cooperation requires coordination, which is supplied by the owner or owners of a given effort. There is a strong incentive to maintain cooperation rather than dividing and duplicating work. Thus the control of the owner is a product of the consent of the other members of the community; that consent can be rescinded if ownership is no longer in their best interests. Competing ownership, or separate projects, can result. Free and open source software developers call this a fork: a situation in which two visions of a piece of software are irreconcilable, producing two separate versions. As a failure of cooperation and consensus it is generally avoided, though it can can also be a source of innovation and an way to resolve with conflict.
Thus, a commons of ideas is managed through the influence of competing interests and responsibility. It bears some resemblance to a market, albeit one without the signaling function of price (nor its tendency to reduce divergent characteristics to a single value) or the investment of capital (activity or responsibility appear to be the closest equivalent).
In contrast, an economy based on ideas as property is more like a hierarchical command economy. Without responsibility, ideas are often underused or wasted4. It is particularly telling that the corporations who favor strong property rights over information seldom institute such arrangements within themselves. Internally, they often result to commons-type arrangements5. The comparison of proponents of the commons to communists is not just inaccurate, it is exactly wrong6. The rights claimed by those who oppose the commons insulate them from responsibility.
1 The pasture example is taken from Garett Hardin’s The Tragedy of the Commons. , which only uses pasture as an illustration of problems with population growth. His argument for the need for either private property or other regulation is often misapplied: the historical commons of land was effectively managed in most cases, and seldom fell prey to the tragedy he describes.
2 The phrase “tragedy of the anticommons” is credited to Michael Heller. See Yochai Benkler’s The Wealth of Networks for details of the relevance to the development of radio (p. 191 in the book or paragraph 350 online).
3 Some have proposed that holding copyright over an idea constitutes ownership in a commons. For example, the creater of a piece of open source software generally retains the copyright while distributing it under an open license. But this is beside the point, because this “ownership” does not confer any special rights on the creator – at least, none within the commons (he could choose to also distribute under a non-open source license, but that’s beside the point). In practice, many successful projects (such as Linux) often have multiple creators and a tangle of ownership, so that dual licensing is difficult or impossible. In general, therefore, copyright in the commons is not a useful or consistent basis for a concept of “ownership”.
4 Lawrence Lessig’s heartbreaking description in Free Culture of the 90-odd percent of old films decaying into nothingness as they sit moldering in vaults only drives the point home.
5 They even justify mergers on the basis of “synergy” – the merged companies can now share each others’ ideas more efficiently. With no economies of scale for creativity or thought, the consolidation of firms that produce ideas implies the inefficiency of property rights in ideas.
6 My appropriation of the language of the Right – ownership, responsibility, markets, competition – is quite deliberate. Too often proponents of the commons have been called “communists” by those who favor strict regimes for “intellectual property”, while the reality is that the ownership of ideas by corporations often goes hand-in-hand with centralized control and planning that would not be out of place in the Soviet Union.