I know that there is an ongoing debate among libertarians about intellectual property rights. Even left-libertarian anarchists have not agreed. For instance, the two most famous individualist anarchists in 19th century America, Benjamin Tucker and Lysander Spooner, were divided on the issue (the latter supporting the right, the former not). But I have to admit, this is one area where I have not really read up on the literature. Instinctively, I reject it, particularly in its most obviously statist forms such as patents.
There are consequentialist arguments both for and against, as I see it. The pro side would be giving artists and other creators full credit and due profit for their creations. Tyler Cowen argues in his book In Praise of Commercial Culture that lack of intellectual property rights doomed Don Quixote author Miguel de Cervantes to one-hit wonder status. Though the book was a huge commercial success, “Cervantes failed to achieve riches only because Spain had no copyright law. Other publishers duplicated his works without paying him compensation.” On the other hand you can argue that cultural impoverishment results from IP in certain types of art. Take one of my favorite albums, the hip-hop masterpiece by the Beastie Boys, Paul’s Boutique. A large part of its brilliance is the pervasive use of the collage art of “sampling”, the piecing together of bits of previously recorded music. Indeed sampling was a huge part of hip-hop culture from the beginning, and is a defining feature of old-school rap groups. Paul’s Boutique could not be produced today, except by the most famous artists, because of the enormous cost (it contains, according to Wikipedia, 105 samples, many from very famous artists like Sly Stone, Curtis Mayfield, and the Beatles). The death of sampling after Beastie Boys pal Biz Markie was sued, effectively set the whole genre on another path.
In my fall semester art history class, I think I might have found one of the earliest debates over IP in the west, in the 6th century feud between Irish price Colum Cille and King Finnian over a copied psalter. In defense of IP, Finnian proclaimed the principle of, “to every cow its calf, to every book its copy.”
Copying seems to be the central issue here. Now, check this story out. We’ve all seen those Obama “HOPE” pictures, right? Well, the AP is suing the designer, Shepard Fairey because he based it on one of their photos. Fairey’s lawyers say he is protected by “fair use” law.
Fair use is a legal concept that allows exceptions to copyright law, based on, among other factors, how much of the original is used, what the new work is used for and how the original is affected by the new work.
Am I wrong here, or is the “original” an actual image of Barack Obama which the AP can in no way have said to have originated as, say, Cervantes originated the text of Don Quixote or James Brown some funky bass line? (And the latter would present an issue too- is it different if I play a James Brown line using my own bass, integrated into a new song, than if I take a brief sample of Bootsy Collins or whoever playing the same? Even Don Quixote is not immune from such a debate, as can be inferred from the Borges tale “Pierre Menard, Author of Don Quixote”.)
Anyway, as I said, I’m not really intellectually committed on this issue either way, but I think it’s an interesting philosophical issue.