Lawrence Lessig's book Free Culture was first published in 2004, but remains just as relevant eight years later. Even though the technology which Lessig wrote about has radically evolved in those eight years, the significance of the principles underpinning his work has never waned. This is because Free Culture is about nothing less than the future of intellectual property in the internet age and the fundamental importance of a free, public culture to continued human creativity.
I thoroughly enjoyed the book, despite Lessig's occasional over-reliance on the problematic term "common sense", and his unflinching belief in the inherent virtue of the framers of the US constitution. This latter point should come as no surprise, however; the book is concerned almost entirely with the American legal system in particular, and as such Lessig's arguments must necessarily be based upon a process of constitutional interpretation. But from a normative perspective, an approach which asks "is this constitutional?" rather than "is this morally right?" can be hugely frustrating, for the one thing that interests me most about the book is its conception of 'property', and in particular, what it is about intellectual property specifically that makes curtailing the rights of ownership over it morally justifiable. I am talking, of course, about the limited nature of copyright terms, a subject which takes up a large part of Free Culture, including Lessig's very personal description of a case he himself brought before the Supreme Court in 2002.
Copyright is a legally sanctioned monopoly over a piece of creative content (eg. a book, a play, a song, etc) held initially by the creator of that content for a (theoretically) limited time, after which the work passes into the public domain, where it is owned by no-one and everyone. It is possible for creators to sell their copyright, in which case these exclusive rights are transferred to another party, but this does not (again, theoretically) extend or commute the term of copyright in any way; it will still eventually expire, and the work will still pass into the public domain. While the term of copyright lasts, copyright-holders either have complete control over the use of their work, or are at the very least to be financially compensated for every use of that work and also of any derivative works (eg. movie adaptations of books, plays written using pre-existing characters, etc), unless that use can be shown to be a legitimate case of "fair usage", an ambiguous concept which is - according to Lessig - fiendishly difficult to defend unless you have deep pockets for paying lawyers.
Considering these facts, it seems to me that the most interesting thing about the intellectual property of copyright is that exclusive ownership of it can only last for a limited time, before it passes into the communal ownership of the public domain. This makes intellectual property stand out from other types of property; if you own a house, a car or just a table - or indeed any tangible object - provided that it has been justly acquired, you are free to dispose of it or utilise it as you wish at any time (within the confines of the law). This right of ownership in indefinite; you retain this right until you die or until you voluntarily give it up by selling or giving the owned object to another person. By contrast, the right of ownership over copyright expires after a limited term set by law, no matter what the wishes of the owner might be. This 'limited' nature of intellectual property ownership is a distinction which is central to many of Lessig's arguments in Free Culture, and is of great importance to understanding the key debates about the future of copyright in the digital age. The question I've been pondering is, what is it about intellectual property specifically that justifies such restrictions on ownership, when these restrictions do not apply to the ownership of tangible property?
The intangibility of the property in question seems to me irrelevant; either you own something or you don't, whether that thing can be physically touched or not. Lessig seems to agree that the tangibility of the property in question is a moot point, but makes only limited efforts to explain what is special about intellectual property when it comes to justifying restrictions on ownership. From what I can discern, though, two distinct lines of argument emerge from Lessig's text which offer a moral justification for restrictions on the ownership of intellectual property, where no such restrictions exist for the ownership of tangible property. Both of these arguments would thus have to be overcome by the authors, composers and organisations (described by Lessig) who continually lobby for the legalisation of perpetual copyright. The first argument concerns the overwhelming societal benefits of maintaining a free, public culture. Extolling these, as can be inferred from the title of the book, is Lessig's main concern in Free Culture. The second is an argument which Lessig touches upon only in passing, but for me is rather compelling; that the fundamental nature of intellectual property is unique, because such property is the product not just of human labour, but in part of a shared, public culture.
I shall consider these arguments in reverse order. First I must ask, what is property? The liberal definition of property enshrined by western democracies can trace its origins back to John Locke, who averred that since a man owns his own body, and thus the labours of that body, whatever he chooses to 'mix' that labour with becomes his property. This is a highly simplified version of the argument, but the sake of expediency it will have to do. In a capitalist system, of course, workers do not gain ownership of whatever they work on, but instead receive an exchange value in the form of money which is (theoretically) equivalent to the amount of labour they have committed. Nonetheless, the principle remains the same, for they then own this money until they exchange it for goods which then become their property. An individual therefore secures ownership of tangible property through a contribution of some kind on their part, whether this is monetary or laborious in nature. The implicit argument which runs throughout Free Culture is that intellectual property, by contrast, cannot be owned in this way, because it is by its very nature a product not just of the contribution of a limited number of human beings, but also of the shared, public culture which they inhabit.
In other words, no writer, musician or artist creates in a vacuum. Everyone is constantly inspired by what has gone before them and what is going on around them. A piece of intellectual property cannot be considered solely as the fruit of one person's labour when that work has crystallised against the backdrop of a public culture which stretches far in both time and space. This, Lessig seems to be saying, is why intellectual property is different, and why no-one can claim permanent ownership over a piece of artistic work even if they were ostensibly responsible for creating it. As such, restrictions placed on the term of exclusive copyright ownership are morally justifiable.
The other, more explicit argument offered by Lessig for the special nature of intellectual property is a consequentialist one. There is an overwhelming and self-evident benefit to a society, he argues, if a free, public culture is allowed and encouraged to flourish. Society must therefore incentivise creators to contribute to this public culture by offering them a term of exclusive ownership over their creations, but this term must of course be limited as the overriding benefits of a flourishing public culture outweigh the private benefits of creators retaining unlimited copyright. All artistic work must therefore eventually be allowed to pass into the public domain. Lessig shies away from fully engaging with the rather socialistic implications of this argument, and this is an easy point of attack for libertarian critics. However, the argument is a perfectly solid one for those who believe in the overriding benefits of public culture, and if it is backed up by Lessig's other, implicit argument about intellectual property being a partial product of public culture, it becomes a much more formidable challenge for advocates of perpetual copyright, the same advocates who have successfully lobbied Congress in the USA to extend the legal term of copyright again and again.
Why Lessig avoids engaging more directly with the special conception of intellectual property on which many of the arguments in Free Culture rest is unclear. Perhaps he doesn't consider it an appropriate focal point for his book, or perhaps he wishes to avoid being labelled a socialist, and having to wade into additional debates about the nature of property. But to my mind, the arguments he puts forth in the book are strengthened and clarified, rather than weakened and muddied, by an explicit definition of what it is that is special about intellectual property per se. I'm sympathetic to Lessig's view, but then he and I appear to share many of the same assumptions, key among them being that Locke's liberal formulation of property is roughly correct. Others with different sets of assumptions may find the argument more problematic, but for me, Lessig's two-pronged assault on creators' moral entitlement to perpetual copyright is a strong one.
