Intellectual 'property'

Look what they’ve done to my song, Ma

John Quiggin19 Comments

My discussion of intellectual property inevitably raised questions about my argument that property rights are not natural rights, but are socially constructed and, in the modern world, exist only as part of the legal structures created and enforced by states. The “moral rights” of artists over their creative works has been raised as a suggested counterexample. In fact, this example reinforces my original argument. Two cases arise, both of interest:

In the United States, the moral rights of artists were effectively unrecognised by law until accession to the Berne Convention 1989, and remain extremely limited. The result is that, once an artist has sold the rights to her work, she has no control over its subsequent use, unless she can make a case separate from moral rights, for example that use in an advertisement misrepresents the artist as endorsing the product. So, for example, it’s perfectly legal to use London Calling to advertise Jaguars, or to clip Fortunate Son to fit a jingoistic ad for jeans. Moral rights are widely recognised, and may generate social opprobrium for those who violate them (as with other misuses of property rights) but they have no legal standing.

In France and other European countries, artists have inalienable moral rights over their work, to prevent misuse of the work by the initial or later purchasers. This is not a property right, but a constraint on property rights. To the extent that moral rights are recognised after the fact, they constitute a taking from the purchaser of the property right. To the extent that they are recognised when artists sell rights to their work, they (like any restriction on alienation of property) represent a constraint on the property rights of the artist. Melanie Safka recognised this, in an ironic fashion, in her classic Look what they’ve done to my song, Mawhen she wrote

It’ll be all right ma, maybe it’ll be okay
Well, if the people are buying tears
I’ll be rich someday, ma

Coming back to the general issue, property rights and (perceived/socially accepted) natural rights have features that mean they tend to coincide in some ways and conflict in others. Most obviously, they are both associated with the general feeling of rightful possession, so that a system of property rights is more stable when it coincides with natural rights. On the other hand, natural rights are mostly perceived as inalienable and indivisible, while property in its ideal form is infinitely transferable and divisible. Moral rights for artists are a classical example of the clash between inalienability and unfettered property rights but the same clash arises at every point in the production process.

19 thoughts on “Look what they’ve done to my song, Ma”

  1. Your last sentence: “…clash between inalienability and inalienability …”

    Something amiss, or too subtle for me. Regards.

  5. This inalienability of moral rights does not seem to be inseparable by nature but by law. Thus they seem to be a portfolio of property covenants that may not convey. We’re it not for law they could convey. Real property in USA often has such covenants also as a function of law.

    So one wonders what inaliability actually is.

  6. I’m not sure the “is” and the “ought” is a bit conflated here…

    for “natural” rights theorists (e.g. Locke), property is both a natural and moral right — they are the same thing! – and not conventional. Law and the government exist to protect these rights.

    Humanists (e.g.Hume) are precisely the other way around — they argue that property (along with other law or moral scheme) is a mere social convention, arising because of, bluntly, social efficiency. These guys argue against any primary, primordial, “natural” right to begin with.

    Then there are the Kantians, who argue for a primordial liberty right that, to be meaningful, requires private property ownership — so property is instrumental to fulfilling another more important right.

    The essay, it seems to me, tries to cram the “moral” right into the positive-law schematic. Moral laws operate at the level of positive, promulgated law. This only works for the humanists. But I suspect the critics are of the Kantian or Lockean type. And so the response doesn’t quite hit the target…?

  7. @John

    Well, I think about all the unenforceable contracts that have not withstood the 14th amendment from labor contracts or unenforceable race based property covenants (you can make your neighbor agree not to sell to blacks but no court can enforce it).

  8. Plenty of cultures don’t consider that artists have a moral right to their works (products.) Either these cultures are wrong or moral rights are a social construct.

    On the other hand plenty of ip owners would consider that they have a moral right, not just a legal right, to whatever it is that they have legal control of control.

    It seems to me that this sort of thinking runs backwards. Morality is built into our biology to drive us us to enforce cooperative behavior. It’s a product of evolution (and game theory, if you like.) What we feel moral about is learned, but it ties in with our intuitions of value.

    It seems to me that it would be much smarter to argue about what the consequences of ownership are, and, what we are willing or able to live with.

  9. Good thoughts there, Jim Birch. Can I add that there is a cultural aspect to ownership too, particularly for art with history. I’m thinking of Aboriginal art on the one hand and Champagne on the other.

  14. Professor, moral rights and copyright sometimes coincide. Your prior post noted copyright expires sometime after the writer’s death (the actual time varies). But companies never die- though they may be wound up or liquidated if insolvent.

    What happens if a book is written by a company?

    Does the copyright last forever?

    A P Herbert the English MP legal reformer, dramatist and writer, formed a company Haddock Ltd (After one of his characters) and his books were then written by the company and the copyright remains in the company (see for example his “Uncommon Law” written ‘for and on behalf of Haddock Ltd by its agent A P Herbert’).

    A P Herbert died in 1971. It’s too early to see whether the copyright endues but it may be interesting to watch.

  15. Peter: “What happens if a book is written by a company?

    Does the copyright last forever?”

    https://en.wikipedia.org/wiki/Work_for_hire#Copyright_duration

    In the United States a “work for hire” (published after 1978) receives copyright protection until 120 years after creation or 95 years after publication, whichever comes first. This differs from the standard U.S. copyright term, life of the author plus 70 years, because the “author” of a work for hire is often not an actual person, in which case the standard term would be unlimited, which is unconstitutional […]

    In the European Union, even if a Member State provides for the possibility of a legal person to be the original rightholder (such as is possible in the UK), then the duration of protection is in general the same as the copyright term for a personal copyright: i.e., for a literary or artistic work, 70 years from the death of the human author, or in the case of works of joint authorship, 70 years from the death of the last surviving author. If the natural author or authors are not identified, nor become known subsequently, then the copyright term is the same as that for an anonymous or pseudonymous work, i.e. 70 years from publication for a literary or artistic work; or, if the work has not been published in that time, 70 years from creation […]

  17. @Dogen
    Sigh, hit submit comment early.

    It’s a very readable summary of current “Faith Based” Intellectual Property justifications, with lots of references to research on the subject. I assume JQ is well aware of Mark Lemley, but maybe not others. Anyone interested in the subject should be aware of him, he’s awesome and probably the most influential person in the legal field on the subject (at least in the USA). Supreme Court justices reference his work constantly.

  18. @Dogen

    That is an interesting and useful paper in my opinion. One unfortunate point is that is begins very poorly. It improves markedly when it actually deals with IP.

    I say it begins poorly because the philosophical and historical underpinnings of the author’s early statements are poor. His characterisation of science leans towards the scientistic view rather than any genuine scientific stance. He partially rescues that mistake with reference to modern science but then Lemley’s next claim that “The age of reason has extended to the economy.” is even more dubious. Given the failure of the great moderation and continuing global economic problems, this claim is risible. In the light of Piketty’s work “Capital in the 21st C” it becomes black humour.

    Lemley continues; “Gone are the days when there was any serious debate about the superiority of a market – based economy over any of its traditional alternatives, from feudalism to communism.” There is a series of mistakes, (philosophically, historically and in terms of political economy analysis) in this broad-brush and inaccurate assertion.

    Very simply, Lemley has at this point made a number of unsupported assumptions about political economy. He has also conflated the “market” with the entire really existing economy as if the market were the essential and underpinning base of the entire economy. This is not the case. Existing rules (laws and regulation) of ownership, control and pre-distribution (as J.Q. terms it) are what really underpin the market. Then the market operates upon that guaranteed substratum. Our economy is not so much market-based as it ownership based first and then market rigged/mediated second.

    This is where those obsessing about IP seem to me to be missing the main issue. The main issue is not about ownership of IP, it is about ownership of real property, especially the ownership of real productive property. Maybe the IP issue is a wedge issue where the moderate left think they can open a new intellectual battle, first against IP and then carrying this against capitalist rights to real productive property in general. But I doubt this. The moderate left are captured and/or defeated by capitalism. IP arguments are an intellectual, conscience-salving, rearguard action. Now they are starting to see how bad untrammeled capitalism can get they are beginning to imagine, “It will be OK if we clip its claws a little while leaving its fangs unmuzzled.”

  19. The property rights problem under capitalism is much greater than the just the IP issue. Indeed, one cannot properly analyse the IP issue without analysing the entirety of ownership under the political economy of capitalism. The forces which now drive the IP offensive beyond the bounds of all moral-philosophical, logical and economic sense, are the very same forces which drive overall ownership of production under capital. You cannot understand the one (IP) without understanding the other in its entirety. Attempting to analyse IP in isolation and without a critique of overall political economy is an exercise in futility.

    http://monthlyreview.org/2003/01/01/the-political-economy-of-intellectual-property/

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