Technically, Jefferson presents two concepts: One is the possibility of excluding others from using or getting access to an idea, which he defines as “action of the thinking power . . . which an individual may exclusively possess as long as he keeps it to himself. ” This is the question whether ideas are “excludable”; Jefferson affirms that an idea is “excludable” until “the moment it is divulged.”
The other concept is whether my use of a divulged idea lessens your use of the same idea. This is the question of whether divulged ideas are “rivalrous.[28]” Again, Jefferson suggests that, once they are divulged, ideas are not “rivalrous.” Jefferson believes that the act of divulging/sharing has made ideas both nonexcludable and nonrivalrous, and that there is little that man can do to change this fact[29].
In fact, shared ideas are both nonexcludable and nonrivalrous. I can exclude people from my secret ideas or writings — I can keep them secret, or build fences to keep people out. How easily, or how effectively, I can do so is a technical question. It depends on the architecture of protection that a given context provides. But given the proper technology, there is no doubt that I can keep people out. What I cannot do is to exclude people from my shared ideas or writings simply because they are not my secrets anymore.
My shared ideas are “nonrivalrous” goods, too. No technology (that we know of) will erase an idea from your head as it passes into my head. My knowing what you know does not lessen your knowing the same thing. That fact is a given in the world, and it makes intellectual property different. Unlike apples, and unlike houses, once shared, ideas are something I can take from you without diminishing what you have.
It does not follow, however, that there is no need for property rights over expressions or inventions[30]. Just because you can have what I have without lessening what I have does not mean that the state has no reason to create rights over ideas, or over the expression of ideas.
If a novelist cannot stop you from copying (rather than buying) her book, then she may have very little incentive to produce more books. She may have as much as she had before you took the work she produced, but if you take it without paying, she has no monetary incentive to produce more.
Now, of course, the incentives an author faces are quite complex, and it is not possible to make simple generalizations[31]. But generalizations do not have to be perfect to make a point: Even if some authors write for free, it is still the case that the law needs some intellectual property rights. If the law did not protect authorship at all, there would be fewer authors. The law has a reason to protect the rights of authors, at least insofar as doing so gives them an incentive to produce. With ordinary property, the law must both create an incentive to produce and protect the right of possession; with intellectual property, the law need only create the incentive to produce.
This is the difference between these two very different kinds of property, and this difference fundamentally affects the nature of intellectual property law. While we protect real and personal property to protect the owner from harm and give the owner an incentive, we protect intellectual property to ensure that we create a sufficient incentive to produce it. “Sufficient incentive”, however, is something less than “perfect control.” And in turn we can say that the ideal protections of intellectual property law are something less than the ideal protections for ordinary or real property.
This difference between the nature of intellectual property and ordinary property was recognized by our Constitution, which in article I, section 8, clause 8, gives Congress the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. ”
Note the special structure of this clause. First, it sets forth the precise reason for the power — to promote the progress of science and useful arts. It is for those reasons, and those reasons only, that Congress may grant an exclusive right. And second, note the special temporality of this right: “for limited Times.” The Constitution does not allow Congress to grant authors and inventors permanent exclusive rights to their writings and discoveries, only limited rights. (Though apparently those limited times can be extended[32].) It does not give Congress the power to give them a perpetual “property” in their writings and discoveries, only an exclusive right over them for a limited time.
The Constitution’s protection for intellectual property then is fundamentally different from its protection of ordinary property. I’ve said that all property is granted subject to the limit of the public good. But even so, if the government decided to nationalize all property after a fifteen-year term of ownership, the Constitution would require it to compensate the owners. By contrast, if Congress set the copyright term at fifteen years, there would be no claim that the government pay compensation after the fifteen years were up. Intellectual property rights are a monopoly that the state gives to producers of intellectual property in exchange for their production of it. After a limited time, the product of their work becomes the public’s to use as it wants. This is Communism at the core of our Constitution’s protection of intellectual property. This “property” is not property in the ordinary sense of that term.
And this is true for reasons better than tradition as well. Economists have long understood that granting property rights over information is dangerous (to say the least)[33]. This is not because of leftist leanings among economists; it is because economists are consequentialists, and their objective in granting any property right is simply to facilitate production. But there is no way to know, in principle, whether increasing or decreasing the rights granted under intellectual property law will lead to an increase in the production of intellectual property. The reasons are complex, but the point is not: Increasing intellectual property’s protection is not guaranteed to “promote the progress of science and useful arts” — indeed, often doing so will stifle it.
The balance that intellectual property law traditionally strikes is between the protections granted the author and the public use or access granted everyone else. The aim is to give the author sufficient incentive to produce. Built into the law of intellectual property are limits on the power of the author to control use of the ideas she has created[34].
A classic example of these limits and of this public use dimension is the right of “fair use.” Fair use is the right to use copyrighted material, regardless of the wishes of the owner of that material. A copyright gives the owner certain rights; fair use is a limitation on those rights. It gives you the right to criticize this book, cut sections from it, and reproduce them in an article attacking me. In these ways and in others, you have the right to use this book independent of how I say it should be used.
Fair use does not necessarily work against the author’s interest — or more accurately, fair use does not necessarily work against the interests of authors as a class. When fair use protects the right of reviewers to criticize books without the permission of authors, then more critics criticize. And the more criticism there is, the better the information is about what books people should buy. The better the information is about what to buy, the more people will buy it. Authors as a whole benefit from the system of fair use, even if particular authors do not.
28.
For the classic discussion, see Kenneth J. Arrow, "Economic Welfare and the Allocation of Resources for Invention," in
29.
For a powerfully compelling problematization of the economic perspective in this context, see Boyle, "Intellectual Property Policy Online," 35–46. Boyle's work evinces the indeterminacy that economics ought to profess about whether increasing property rights over information will also increase the production of information.
30.
Some insist on calling this "property"; see Frank H. Easterbrook, "Intellectual Property Is Still Property,"
31.
This is the message of Justice Stephen Breyer's work on copyright, for example, "The Uneasy Case for Copyright."
33.
For an extensive and balanced analysis, see William M. Landes and Richard A. Posner, "An Economic Analysis of Copyright Law,"
34.
These limits come from both the limits in the copyright clause, which sets its purposes out quite clearly, and the First Amendment; see, for example,