by Hugh Breakey, Ashgate Publishing Co., Law, Ethics and Governance series, 2012. 175pp. Hardcover, $124.95. ISBN: 978-1409447115
Reviewed by Stephen McJohn & Lorie M. Graham, Suffolk University Law School. Emails: smcjohn [at] suffolk.edu, lgraham [at] suffolk.edu
INTELLECTUAL LIBERTY: NATURAL RIGHTS AND INTELLECTUAL PROPERTY provides a valuable new component to the theoretical analysis of intellectual property law. The project of the book is to “philosophically defend the importance of the public domain and user’s rights, and to do so through the use of natural rights thought” (p.1). The book first reviews Locke’s general framework for justifying both the appropriation of property and the constraints on such appropriation. It then casts the Lockean bargain into Hohfeld’s paradigm of “jural relations in which legal terms have correlates (rights – duties) or opposites (right – no right), specifically arguing for the viability and acceptability of Duty Imposing Powers. The book then turns to applying that structure to intellectual property, arguing that the public domain and user’s rights can be more than simply the various areas that do not fall within intellectual property rights (and so an odd lot without any common feature), but rather the consequence of a right necessary to justify intellectual property: “a particular type of user’s right, the RIGHT TO INTELLECTUAL LIBERTY: the right to apprehend, investigate, and learn about the world, and to use what one has learned to inform one’s actions” (p.4, emphasis in original). The author surveys comprehensively the legal scholarship on the public domain and shows how a right to intellectual liberty could provide a unifying basis that has been lacking up until now. This represents a significant opportunity for legal scholarship. Much has been written about preserving the public domain and user’s rights in the face of the constant expansion of intellectual property rights over the past years. But, although many reasons have been given for the importance of the public domain and user’s rights, those reasons are generally grounded in specific areas, such as the need for authors and inventors to use the work of their predecessors. The idea of intellectual liberty provides a single intellectual focus for the justification of restrictions on intellectual property rights. Using Hohfeld’s framework clarifies the murky process of granting rights to intangible works and limiting those rights. The book is also refreshingly respectful of other points of view, whereas intellectual property discussions often are polarized, with rights holders and users’ defenders sometimes unable to even see the other point of view.
There have been a number of works that have taken a natural rights approach to give a theoretical justification of intellectual property, along with its limits. INTELLECTUAL LIBERTY, however, [*642] breaks new ground by focusing on user’s rights, as opposed to using natural rights theory as a justification of intellectual property law and looking then at user’s rights as the limitation on that. This has two benefits. First, it allows the default to be that expression, ideas, and invention are free for others to use. Intellectual property law becomes an exception to that default, requiring a justification weighed against it, as opposed to a more abstract justification, which is always easier to find. Second, it allows for a theoretical separation between the bases of intellectual property rights and user rights. In particular, intellectual property rights are often justified on a utilitarian basis. In order to provide an incentive for the creation of works and inventions, the law provides the carrot of exclusive rights to authors and inventors. Patent and copyright law in the United States appears to rest on such a basis in the U.S. Constitution. But even if that general justification is utilitarian, the concept of intellectual liberty allows one to look to natural rights to support limits on intellectual property rights.
Intellectual liberty, then, requires constraints on intellectual property rights. INTELLECTUAL LIBERTY matches existing legal doctrines to the protections that such a liberty would require. The right to apprehension conforms to the rule that copyright does not constrain the use of a work, as opposed to its reproduction (p.137). The right to investigate supports copyright’s inapplicability to ideas, conversation, copying for research and other fair uses, and certain types of access to digital works (pp.138-39). Similarly, patent law does not prevent pure experimental use of a patented invention (albeit very narrowly understood in some jurisdictions), learning of inventions (because the patent application requires disclosure), and reverse engineering. Other rights necessary to learn about the world and use that knowledge likewise find mirroring provisions in positive intellectual property law: the non-ownership of ideas, the legality of abstract copying, the exemptions for copies once sold (first sale rights), even the obligation to deposit copies of copyrighted works with the government all fit nicely into the unifying idea of intellectual liberty. The author notes how intellectual liberty would be inconsistent with a strong intellectual property regime, one which “requires people exclude themselves from engaging with ideas themselves, prohibits the copying of abstract themes and methods, has no exceptions for protected activities, allows intellectual-property-holders control of the future sale or loan of physical items, and allows property-rights to hold over generations on end” (p.49). Rather, existing intellectual property rights regimes limit all those aspects, although, as the book notes, some of those limitations may not be set correctly. Copyright’s duration is limited in theory, but books published after 1923 are still under copyright. Patent’s vague subject matter rules hazard patents on abstract ideas. Famous trademarks can use dilution doctrine to keep others far away from their favored symbols. INTELLECTUAL LIBERTY does not seek to resolve the doctrinal consequences of its general approach, rather to provide a framework to analyze the doctrine.
Another strength of the book is that it views the users of copyrighted works and patented inventions as not simply [*643] copiers and consumers. Much debate around the proper reach of intellectual property rights, whether at the doctrinal or theoretical level, casts the parties as either the creative rights holder or the mere user of the subject matter. But passive use is a mischaracterization. The questions are not simply “ones relating to property entitlements and the distributive justice provisos implicated in the allocation of valuable goods” (p.156). Rather, the freedoms “to enquire and learn” are at stake.
The book is lucid and modest. It situates its contribution quite clearly, laying out previous work in natural law analyses of intellectual property and also other philosophical approaches, such as utilitarianism. The book also does not try to use its framework to solve the many vexing problems about the scope of intellectual property law, such as how far should fair use extend or what should be patentable. Rather, it provides a strong framework for thinking about such questions in a way that gives weight to the basic interests of both rights holders and users.
The book also draws from an impressive array of sources, in philosophy, law, and beyond, which allows Breakey to convincingly situate his work and show how it adds to the literature. To emphasize that natural rights thinking is not new in copyright scholarship, the book draws from a copyright classic, Benjamin Kaplan’s 1967 work, AN UNHURRIED VIEW OF COPYRIGHT: “If man has any ‘natural’ rights, not the least must be a right to imitate his fellows, and thus to reap where he has not sown. Education, after all, proceeds from a kind of mimicry” (Kaplan, p.2). In a more contemporary vein, it looks to the use of free software ethics, as set out by Richard Stallman (2010). Legal scholarship has been a little slow in addressing Stallman’s ethical framework, even though the GPL (General Public License) is one of the most influential legal documents in technology law. INTELLECTUAL LIBERTY uses his writings to illustrate that copyrighted code may be serve to run on computers in machine readable, executable form, but there is a need for those using copyrighted code to be also able to access the source code, in order to analyze and learn from the code. Having said that, Stallman's writings also pose some puzzles for the future development of the ideas of intellectual liberty. Free software is emphatically not public domain software. Rather, the GPL relies on copyright to maintain public access to code: anyone who uses GPL’ed software promises to provide access to the source code of any derivative works they make from the code. This copyleft uses copyright to prevent coders from limiting access to code. The goals are broadly consistent with intellectual liberty (indeed, would support an abolition of software copyright), but rely on restricting others, by allowing them access to the code only if they agree to the bargain. Similar paradoxes arise with literary and artistic works released under free culture Creative Commons licenses, which allow free distribution and reuse, but often bar use for commercial purposes, which might be seen as limiting intellectual liberty. INTELLECTUAL LIBERTY, with its foundational approach to the public domain and user’s rights, might provide a basis for interrogating the ethics not just of intellectual property rights, but of free software and free culture, which might seem at the other pole. [*644]
This recognition of the user as an independent rights holder who has the freedom “to apprehend and investigate the world, and to think about and act upon the ideas they have learned” (p.99) could be comfortably situated within a broader human rights framework aimed at promoting the free flow of information and ideas (see, e.g., Article 19(2) of the International Covenant on Civil and Political Rights, which recognizes everyone’s “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”). Breakey offers us a conceptual foundation (and terminology) for the articulation of freedoms that are useful beyond the confines of intellectual property.
Kaplan, Benjamin. 1967. An Unhurried View of Copyright. New York: Columbia University Press.
Stallman, Richard M. 2010. Free Software, Free Society: Selected Essays of Richard Stallman (2d). Boston: The Free Software Foundation.
Copyright 2013 by the authors, Stephen McJohn and Lorie M. Graham.