Intellectual Property
by Duncan Bayne
The concept of 'intellectual property' (henceforth IP) is the source of much debate nowadays. The debate generally focuses upon the applicability and the lifetime of IP; that is, how IP owners may restrict use of their IP, and for how long such ownership lasts.
Firstly, the issue of duration. The US Constitution provides for copyrights and patents through Article I, Section 8:
If IP is in fact property, then this section is flawed, as IP should be treated like any other type of property. It should not expire, and the State should not be able to restrict its lifetime, because such a limit would represent the States sanction of initiation of force by the citizens of the State. Consider real estate deeds with a lifespan extending 50 years beyond the death of the original purchaser; no rational person would consider such a system fair, and yet that is exactly how IP works today.
If IP is not real property, then this section is also flawed, because application of copyright and patent law to non-property would be an initiation of force by the State; it would be preventing people from using and distributing things that are not property. Consider a system by which the State charged every person a fee for breathing the air around them; again, no rational person would consider that fair.
Thus, regardless of whether IP is property or not, contemporary IP laws are flawed with respect to lifetime; they must either be extended indefinitely, or scrapped altogether.
Secondly, applicability. Most legislations (including the USA) have embraced the concept of 'fair use', that is, a list of restrictions that can not be enforced by IP owners. An example of 'fair use' is media swapping, e.g., buying a music CD and making a digital copy of the music for personal use.
Obviously, applicability isn't an issue unless one considers IP to be genuine property, to which binding contracts apply. Assuming that IP is genuine property, fair use becomes irrelevant, because the terms under which a consumer can use IP are any that can be negotiated between the consumer and the producer. Consider a recording company that stipulates terms of use for its CDs -- by buying one of those CDs, the consumer is agreeing to be bound by those terms of use, including any that might limit traditional fair uses. If the consumer feels those terms of use are too restrictive, he can shop elsewhere -- just as with any other business transaction.
So, in conclusion -- there is no possible justification for the current intellectual property laws, 'fair use' included; they must either be repealed entirely, or amended to remove all lifespan restrictions.
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