What Makes Private Property Private?

Cory Doctorow's latest column explores the doctrine of "terra nullius" (nobody's land), which he traces back to John Locke's 1660 work TWO TREATISES OF GOVERNMENT:

Terra Nullius

Under this theory, private property is created by "a human taking an unclaimed piece of the common property of humanity and mixing it with their labor" to create something new, which then "belongs" to the creative innovator. The catch in this theory, according to Doctorow, is the problem of deciding what constitutes "unclaimed," "common property," or unimproved "nature." European colonizers, for example, viewed the lands of "primitive" people as available for settlement and exploitation because they weren't "owned" by any individual according to the Western concept of ownership—in an act of radical "erasure" of the indigenous peoples. As Doctorow puts it, if those lands belonged to nobody, the "primitives" who lived there must be "nobody."

How does this distinction apply to intellectual property? Doctorow summarizes the claim as follows: "The labor theory of property always begins with an act of erasure: 'All the people who created, used, and improved this thing before me were doing something banal and unimportant—but my contribution is the step that moved this thing from a useless, unregarded commons to a special, proprietary, finished good.'” One application he cites is the example of the Beatles. The R&B rhythms the Beatles incorporated into their music didn't count as owned; they were considered common property, available to anyone who chose to use them. On the other hand, if any musician nowadays takes recognizable elements of the Beatles' songs and incorporates them into new material, that's considered theft. How do we decide what's owned and what's free for use without acknowledgment or compensation? A similar phenomenon that occurred to me, not mentioned by Doctorow, is the 20th-century folk revival. Some folk musicians recorded traditional songs and copyrighted them, thereafter claiming ownership of the song (not simply of their particular arrangement of the song). Here's a forum thread discussing what elements of traditional songs can be copyrighted, as opposed to changes by individual singers that should be considered part of the "folk process" rather than private property:

Folk Song Collectors and Copyright

Two remarks in Doctorow's article that particularly struck me:

"The Ayn Randian hero is delusional: his (always his) achievements are a combination of freeriding on the people whose contributions he’s erased, and bleating that everyone who had the same idea as him was actually stealing his idea, rather than simply living in the same influences he had."

Here's how Doctorow applies this principle to authorship, using his own work as an example: "I wrote my books. They were hard work. I made real imaginative leaps that contributed to the field. Also: I wrote them because I read the works of my peers and my forebears. If I hadn’t written them, someone else would have written something comparable. All these things can be true. All these things are true. Originality exists, it just doesn’t exist in a vacuum."

In my opinion, that last sentence makes a valid and important point. Nothing in his essay, however, supplies guidelines on how to determine what creative elements qualify as "original" contributions that deserve protection as private property.

For example, here's an update about the ongoing lawsuit among Tom Clancy's estate, his widow, and his first wife over who gets to profit from past and future works featuring Clancy's character Jack Ryan:

Who Has Custody of Jack Ryan?

While I don't think anyone would deny that Clancy created and therefore "owned" Jack Ryan according to both ethical and legal principles, the question of who holds rights to the character after Clancy's death (or should the profits be split on some kind of chronological basis, depending on when the particular books or films were released?) is tangled up in a dense legal and contractual controversy.

Speaking of "commons," if we could trace back far enough, we'd find that every creative work was originally made by some individual or particular group of creators. It's just that once a work gets so old we can't identify the creator(s), we categorize it as "traditional" and part of the "common property of humanity."

Margaret L. Carter

Carter's Crypt