Intellectual Property, Abstract v. Natural Right, Part III
The third post in a series. In post I, we outlined a 10,000 – okay, 100,000 – foot view of the legal history of intellectual property in law. In post II, we covered some of Hegel’s writings from “Elements of the Philosophy of Right”, the Cambridge Text edition… specifically the first three parts of Section I: Property. Today we pick up where we left off, with the alienation of property.
The Alienation of Property
§65 through §67 begins the discussion of the alienation of property, by either abandonment or transferring it to the will of another as their possession. Only that which is external to the self can be alienated, although one can “alienate individual products of [one’s] particular physical and metal skills and active capabilities to someone else and allow him to use them for a limited period”. It is legitimate, therefore, to offer the product of one’s work or thought to another in the form of paid labor or work, but not for an indefinite period (which would be slavery, more on that in a bit).
This can be applied (with careful nuance) to support the concept of intellectual property, as the inventor who creates the invention out of their will, for another, is being paid for their work.
One must be careful, however, as the invention thus created, if it is not in any sense still owned or entailed by the inventor, would be owned for an indefinite period by the employer. To the extent that some intellectual property can be inner property of the spirit, this would be argued to be analogous to slavery of the worker who creates the product of the mind. It would be unjust, as well as practically impossible, for the creator of a work of the mind to entail the inner properties of those works to the will of another. To the extent that the same intellectual property can be external property, however, this could be argued to be alienated properly and justly.
It is in the following paragraphs that Hegel returns to the difficulty of intellectual property. Paragraph §68 distinguishes two possible issues with accomplishments of the mind, “In acquiring it, the new owner may thus appropriate the thoughts which it communicates or the technical invention which it embodies, and it is this possibility which at times (as with literary works) constitutes the sole purpose of such things and their value as acquisition; in addition, the new owner at the same time comes into possession of the universal ways and means of so expressing himself and producing a multiplicity of such things.” In the acquisition of a book, the owner can make his own copies; in the acquisition of a new invention, the owner may possess the ability to reverse-engineer the device and make his own copies; in the viewing of a painting, an artist acquires insight into techniques with which they may not currently have awareness; in the listening to the symphony the composer may learn more about how to make her own music.
In the elucidatory comments, Hegel makes an additional distinction: the replication of a painting or a sculpture requires the skilled labor of a copyist (at the time) – another painter or sculptor who can replicate the work but, of necessity, will put part of their own will into the end product. Compare this to the replication of books or inventions, which are largely a matter of unskilled mechanical reproduction (again, in Hegel’s day)… and largely a matter of digital replication in ours. This distinction is made at this stage of the writing without a value assessment, but it is clear that the means of production of the thing, being themselves external to the will, is to be considered. More Hegel: “Between the extremes of art and the product of manual craftsmanship there are also transitional stages which share the character of one or the other extreme to a greater or lesser extent.”
Paragraph §69 asserts a critical point in favor of the intellectual property supporter: the owner of an individual item as an expression of a work of the mind owns only that individual item; the “means of producing such products and things” is not alienated by the creator and may be reserved for the creator “as his distinctive mode of expression.” This seems contra to the Use of the Thing as described in Paragraph §61 and the entailment noted in §63, but is in accordance with at least the concept of usufruct in Paragraph §62. Unfortunately, Hegel does not dig farther into this topic, as it leads to the immediate question from the perspective of today: if the means of producing such products and things is itself a work of the mind, to what extent does the inventor of the means of producing such products and things come into play, and what obligations (if any) exist? In the specific instance of patent v. copyright law in the U.S., the legal protection for the means of reproduction (patents on, say, the DVD player) expires an order of magnitude earlier than the legal protection for works that are distributed via that medium. There is a question of justice, here.
In the elucidatory notes, Hegel acknowledges that there are difficulties, here; “The first question is whether such a separation… is an admissible part of the concept”. Hegel notes that the ability to create additional copies of intellectual property “makes it not merely a possession but a resource (see below, §§170ff.), so the latter quality lies in the particular kind of external use to which the thing is put, and is distinct and separable from the use to which the thing was immediately destined” (emphasis mine, added). Hegel continues to note that this division is such that, “to retain one part of the use while alienating the other part is not to reserve a proprietorship without utility”, meaning that if the division is allowed, the purchaser of intellectual property does gain utility from using the individual instantiation, and the creator retains utility from retaining the means of creating additional instantiations; but each party possesses utility that will not lessen the utility of the other, as the individual instantiation can be wholly subsumed to the will of the purchaser without infringing upon the will of the creator and his retained right of reproduction, and the converse likewise holds.
This is asserted, however, and there are two immediate additional difficulties: for the purchaser of the work of the mind necessarily gains as well the inner properties of the spirit by the acquisition of the work of the mind; by acquiring ownership of a steam engine, for example, the owner gains knowledge of gears and the transfer of power from one form to another, knowledge of the nature of pressure vessels, etc. By the application of his own will and knowledge, the purchaser can possibly create a distinct and better steam engine, or some other form of engine altogether, using the knowledge gained by subsuming the inner properties of the device. There is a question of provenance, then; to what extent (if any) does the purchaser of the work owe the inventor should they expand upon the properties of the device? The second difficulty is that the utility of the work of the mind to the original purchaser may in fact be decreased by replication; and thus the creator of the work of the mind may therefore retain, with his right of reproduction, the ability to alter the utility of the single instantiation already sold. If I run a manufacturing plant and I have the only Widget Assembler 2000 I have a big advantage over other manufacturers of widgets; but the instant Bob the Inventor sells another Widget Assembler 2000 to my competitor, its utility to me is reduced significantly.
The elucidatory notes continue to describe this difficulty, as Hegel further writes, “The purely negative, but most basic, means of furthering the sciences and the arts is to protect those who work in them against theft and to provide them with security for their property, just as the earliest and most important means of furthering commerce and industry was to protect them from highway robbery.” Here Hegel simply acknowledges the practical value of laws protecting products of the mind. However, “… the destiny of a product of the intellect is to be apprehended by other individuals and appropriated into their representational thinking, memory, thought, etc.”, in other words, it is in the nature of the accomplishments of the mind that they become part of the inner property of the spirit of others (Hegel is at heart an “information wants to be free” guy). Further, Hegel explicitly notes that “… the mode of expression whereby these individuals in turn make what they have learned … into an alienable thing will always tend to have some distinctive form, so that they can regard the resources that flow from it as their property, and assert the right to reproduce it.”
Clearly, Hegel regards sufficiently derivative works as products not of the original inventor, but of the individual who has apprehended the original product, applied their own will and effort, and created something new that they can call their own. For some value of “sufficiently”.
Hegel continues, “The propagation of the sciences in general, and the specific business of teaching in particular… consist in the repetition of established thoughts, all of which have already been expressed and acquired from external sources; the same is true of writings designed for teaching purposes and for the propagation and dissemination of the sciences.” It seems clear from this and the previous sentences that Hegel is implicitly acknowledging the existence of the modern concept of the intellectual commons, or explicitly what Hegel calls “the existing store of knowledge”, as being distinct from intellectual property upon which an individual has a meritorious claim.
Hegel concludes, somewhat unsatisfactorily: “…The extent to which this is so cannot be precisely determined, nor therefore defined in terms of right and the law. The same is true of the extent to which such repetition in a written publication constitutes plagiarism. Plagiarism ought therefore to be a matter of honour, and honour should deter people from committing it. – Thus laws against breach of copyright do attain their end of protecting the property rights of authors and publishers to the (albeit very limited) extent specified.”
The question arises: to which laws is Hegel referring? The Elements was published in 1822. While England had encoded intellectual property laws, it seems as if a direct citation of them would be a scholar’s natural inclination, if this should be the intended reference. Hegel is in my opinion probably referring to the Prussian Statue book of 1794. The law outlined therein… “based copyright on a publishing contract, entitling the publisher to sue for damages anyone undertaking a pirate edition. Publishers must, however, secure the authors’ approval before publishing an amended edition, for which authors may enter into a contract with another publisher, as long as they buy up at wholesale prices any remaining copies of the first edition.” (Bentley 1794). This contention seems supportable by the wording of Paragraph §43 of Property.
A notable exception should be revisited at this point in the singular case of the trademark. Conceptually modern trademarks are actually well represented in Hegel as equivalent to Hegel’s use of signs. Paragraph §58, as previously noted, regards the placing of a sign on a thing as the ultimate expression of taking possession. To mark a thing with a sign other than your own would constitute Deception, as described later in Paragraph §88: “The arbitrary will of the other party may delude me with a false semblance as regards what I acquire, so that the contract may be perfected in order as a free mutual agreement to exchange this specific thing in its immediate individuality, although the aspect of what is universal in itself is lacking.” Thus while copyright and patent law is not required strictly by the ideas outlined in Hegel, trademarks would be regarded as necessary as an infringement of right.
Transition from Property to Contract
Paragraph §71 is dedicated to the transition from the discussion of Property to the discussion of Contract. Hegel defines contract as the “… mediation whereby I no longer own property merely by means of a thing and my subjective will, but also by means of another will, and hence within the context of a common will.” Further Hegel states in the elucidatory comments: “Contract presupposes that the contracting parties recognize each other as persons and owners of property; and since it is a relationship of objective spirit, the moment of recognition is already contained and presupposed within it.” The common will is not the universal will, but is instead “the form and shape of community”, i.e., contracts exist in the context of one or more parties inside a specific community.
Section II: Contract
Paragraphs §72 to §74 describe the particulars of contract as described in paragraph §71: contract is the process by which a particular will alienates a property while another will takes possession of it; since two individual wills are involved this is a mediation.
Paragraph §75 notes that this is a relation of two immediate self-sufficient persons, thus “the object of the contract is an individual external thing, for only things of this kind are subject to the purely arbitrary will of the contracting parties to alienate them.” Thus it would be difficult to justly contract for a transfer of full ownership of works of the mind, as the individual external thing is but part of such a work. In practice, then, Hegel would find an author of a work of literature could contract with another party for the publication of his work, by offering a specific sum for each printed copy. The author, in turn, could sell those copies via an arrangement with a bookseller. However, the author cannot enter into a contract regarding the work of literature, itself entire with its inner properties, to another. There may be a conceptual relationship where this is possible, but it would not be a “contract”.
Paragraph §80 provides the practical framework for acceptable contracts under Hegel. There are two nuances to note here. The first is that Hegel recognizes the Contract of gift, including this regarding Testamentary disposition, “… has no place in the concept of contract, but presupposes civil society and a positive legislation.” Inheritance, then, is not required by Abstract Right, but is not forbidden either, although it would not properly be considered a “contract”. The second note is that Contracts of Exchange can include the exchange of two particular things, the exchange of a particular thing for money, letting or hiring of a thing, or as a wages contract; “alienation of my output or services (i.e. in so far as these are alienable) for a limited time or with some other limiting conditions. (see §67)”.
In summary so far, it can be seen that Abstract Right, according to Hegel, is disinclined to consider intellectual property as equivalent to ordinary property. There is no abstract right to intellectual property, as one might argue there is a natural right from the perspective of Locke as will be seen in the upcoming post(s). The works of the mind have similar properties to ordinary property, but the nature of their inner properties of the self, the destiny of the work to be apprehended by others, and the inability to precisely determine provenance all render the concept of intellectual property “outside the bounds of right and the law”. There is, however, a practicality to providing protection to workers of the mind, indeed it is the most basic protection, and the laws guarding not the intellectual property but the contractual right to produce individual instances of it thus achieve their aim.
Note that the last is an observation, not a prescription. Hegel does not provide us with a logical framework in which intellectual property must be recognized as a right, or even should be recognized; indeed, the emphasis is instead that recognition of them should be limited to the context of a contract, and that the inner properties of the workings of the mind cannot be justifiably included in such a contract. Indeed, Hegel would prefer to leave this matter to honour, and not the law.
Some of modern intellectual property law would thus be not be grounded in Abstract Right. A copyright or patent, once granted, could not “sold” by an inventor or author, only licensing rights to reproduction or use could be granted, and then only for some limited time. Certainly, the death of the author or inventor would properly void the copyright or patent and place the work of the mind in the commons; inheritance of intellectual property would be difficult to justify. The modern concept of “fair use” is well supported by the Hegelian perspective, as the inner properties of the workings of the mind are not properly considered property. As a specific example of modern intellectual property law that would be disagreeable, Hegel would find “non-compete” contracts or transferring the title to intellectual property to another to be very nearly an absurdity. Trademarks, however, would be not only justifiable under Abstract Right but are required.
To again be clear, this does not remove the possibility of acknowledging some forms of intellectual property in a legitimate fashion, provided the law does not abridge the inner property sanctum of the individual will. Hegel sees the practical value of some sort of legal framework for intellectual property, provided it does not interfere with Abstract Right, and provided it acknowledges the inherent nature of knowledge to become part of the commons, by destiny.