Intellectual Property, Abstract v. Natural Right, Part II
This is the second post in a series. The first post is here.
In this post, I’m going to get into the weeds of Hegel’s “Elements of the Philosophy of Right”, the Cambridge Text edition. Hegel writes in non-bivalent logic that requires some brain-twisting to decipher for people who haven’t studied differing logics, so if you’re confused about my inability to make strong declarations in this part of the series, bear with me. There are a lot of quotations from the source material.
Before moving into Section I: Property, it is important to note from §36 of Abstract Right: “The commandment of right is therefore: be a person and respect others as persons”, which is linked to this passage from the Encyclopedia: “It is a duty to possess things as property, i.e., to be as a person; which, in the relation of appearance, positing the reference to another person, develops itself into the duty of the other to respect my right (Hegel’s Philosophy of Mind § 486R).
Property, the possession thereof, and the recognition of property rights are central to Hegel. The reasons for this are clarified below.
Section I: Property
Hegel’s discussion of property is focused into four main sections: the definition of property, the acquisition of property (the act of possessing), the use of property, and the dissolution of ownership (the alienation of property), either by abandonment or transfer to the will of another. We’ll cover the first three parts today. Although Hegel mentions intellectual property specifically early in the chapter, a thorough understanding of property independent of the specific case is necessary for the full understanding of the Hegelian model for property and ownership, so those of you who have read Hegel and are wondering why I’m skipping that section at the moment, don’t worry, we’ll get back to it farther down in this post.
Definition of Property
Property, in the sense of things that can be possessed, consists of things, which Hegel defines in §42 as an external something unfree, impersonal, and without rights. It is useful to look at the examples of things as given in the section. Animals are the first example of what can be considered things. They can intuit, but not with itself as the subject; they possess no capability to examine themselves in the abstract. He continues discussing animals in §44 and §47, to clarify the position of animals as things. The externality of things is an important characteristic, as we will see later.
Hegel defines taking possession in §54, noting that it consists of three main parts. These are: physical seizure of something, giving it form, and designating its ownership.
Real property (land) is mentioned first in §55. It seems to the modern mind that there is a difference between land ownership and object ownership. Objects, even ones so great as monuments, can be moved from one location to another, but land ownership can only be transferred from one owner to another, not one place to another, as the land is in itself a place. Hegel’s definition of things as external to the will, however, is clearly inclusive of land as a thing. As long as the will can imagine itself as the owner of a thing, the will can possess the thing; physical possession is actually a lesser form of possession. Taking possession by designation (marking something as yours), as Hegel says in §58, “is the most complete mode of all, for the effect of the sign is more or less implicit in the other ways of taking possession, too. If I seize a thing or give form to it, the ultimate significance is likewise a sign, a sign given to others in order to exclude them and to show that I have placed my will in the thing.”
Use of the Thing
It is clear in §59 that it is the act of possession is not enough to constitute property, as “Use is the realization of my need through the alteration, destruction, or consumption of the thing, whose selfless nature is thereby revealed and which thus fulfills its destiny… When I and the thing come together, one of the two must lose its distinct quality in order that we may become identical. But I am alive, a willing and truly affirmative agent; the thing, on the other hand, is a natural entity.” Indeed, Hegel goes further, in §61, “Thus, if I have the whole use of the thing, I am its owner; and beyond the whole extent of its use, nothing remains of the thing which could be the property of someone else.” In §62, Hegel further clarifies the concept of ownership by noting that entitlement to partial or temporary use of something is distinguished from ownership, and mentions the particular case of usufruct – the right to use and enjoy another’s property provided that its substance is conserved. Finally, in §63, he provides one additional note regarding ownership: to own a thing is to own both its value and its use; “A family which cannot sell or mortgage its estate is not the proprietor of its value… But since this form of property is out of keeping with the concept of property, such limitations (e.g., feudal tenancies and entails) are now for the most part disappearing.”
Now that we have a brief overview of property in general, we return to §43 of Property, as it is devoted entirely to the subject of accomplishments of the mind: sciences, arts, inventions, and even religious observance. Hegel says of these, “[as] objects of contract; in the way in which they are bought and sold, etc., they are treated as equivalent to things,” (BSK will relate) “… we hesitate to call such accomplishments, knowledge… etc., things; for on the one hand, such possessions are the object of commercial negotiations and agreements, yet on the other they are of an inward and spiritual nature.” He further recognizes that, “possession of body and spirit which is acquired through education, study, habituation, etc., and which constitutes an inner property of the spirit will not be dealt with here. But the transition of such intellectual property into externality, in which it falls within the definition of legal and rightful property, will be discussed only when we come to the disposal of property.”
Hegel acknowledges here that intellectual property is unlike other (external) things in that the acquisition and dissolution of intellectual property on the first hand alters the property of the spirit acquiring the property, and thus the disposal of this class of property will be unlike that of other property, as that which has become part of the spirit cannot be relinquished. He obviously has some struggles dealing with this (indeed, I’d argue that he basically kicks the can down the road because he can’t resolve it to his own satisfaction).
A summary translation into the vernacular, so far: if you build me a waterwheel, and I use the waterwheel to make flour, pretty much everything involved is entirely external. The value of the flour is measurable. However, if you show me a movie, the value of that movie *to me* is primarily a function of its ability to impact the spirit, according to Hegel. Thus, my assessment of the value of the movie is uniquely individual to me, and it would thus be difficult for the artist to properly price such a thing. For those people who make lists of “books that changed my life” or “movies that I would take to a desert island”, this concept is not entirely alien. Moreover, if I myself am a practitioner of the same work of the mind that you are, I am – by exposure to your instance of the craft – necessarily altered internally by your work. An author who reads Shakespeare is necessarily changed in his or her own ability to write literature. But this changing is internal to the author, and thus again cannot necessarily be meaningfully measured.
Further, from the previously discussed paragraphs, Hegel’s hesitation is readily explicable from the ontological problems inherent in viewing these accomplishments of the mind as property by his definition. In order to be an owner of a thing, one must possess the whole of the thing, so that nothing remains of the thing which could be the property of someone else; this presents obvious difficulties for the transfer of ownership of accomplishments of the mind. He works some of this out in the section on Contract, which we will cover in Part III.
Moreover, the act of the use of the thing is itself subject to problems of definition for each certain type of accomplishments of the mind. The meaning of “use” for physical objects is fairly clear when expressed in the will, even to any other independent will which can observe the owner and describe the use of the thing objectively. The use of lyrical poetry or philosophy or music or literature is not quite as clear, particularly to the observer who is not the owner. It can be generally said that the use of certain sorts of accomplishments of the mind, particularly the arts, is very nearly only the act of altering the property of the spirit which is using the property. Since this use is entirely internal to the will, it will defy ready or entire explanation to anyone other than that will that takes possession of it. The use of inventions is more like that of physical things, but is still different, as Hegel will discuss later in the section on Alienation of Property.
Finally, an important note for today’s reader is that entailed property is explicitly considered by Hegel “out of keeping with the concept of property”, and yet it seems clear that intellectual property is entailed in the sense of its value and its use, in practice. Hold onto that note.
As mentioned earlier, the scale and scope of the difference between patent and copyright law suggests qualitative differences between the two, and yet Hegel describes them without differentiation except in general terms. As the product of a pre-Industrial and pre-Informational age, the implications of use and ownership of this property, and thus their value, were in relative infancy. This is open to assessment at the end of the series.