Wednesday, April 29, 2015

A critique of "Intellectual property"

In my April 19, 2015 blog post "Thoughts on Copyright", I  argued against extending copyright beyond 50 years after an author's death. My basic premise was that such an act was socially unjust and amounted to restricting the right to distribute information to a few creating an unfair and unnecessary monopoly over the distribution of creative expression. In response to that post, a colleague of mine responded especially to one of my points that copyright should be treated like patents. His argument was that the "economic worth of both a patent and copyright are realized differently". However, one of his response that triggered this blog post was the mention of the school of thought that conceptualizes "intellectual property" as "real property". Hence, the purpose of this post is to react to the school of thought that argues that we should treat "intellectual property" as "real property".

Let us begin by first defining intellectual property. For this, I go to the World Intellectual Property Organization's [WIPO] website. According to WIPO (n.d.), "Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce" (p. 2). In my personal opinion, it is problematic to conceptualize  "creations of the mind" or what I call creative expressions of the mind as "property". For the rest of this post, I want to advance two arguments against conceptualizing works or expressions of the mind as "intellectual property" or even as"property". By my use of the term "property", I mean equating works of the mind as land.

Argument 1: Equating works of the mind raises social justice issues
Treating creative works or expressions of the mind as "property" is an unjust idea that creates a class of haves and a class of have-nots that can be traced to the practice of feudalism. In feudalism, there were those who owned land and others that did not own land. As such, those who needed the land to create or use had to sell their labour, services or part of what they created to land owners or landlords.

Treating creative works of the mind brings back this type of system, where individuals labour to create works and have to own or use those that own the material means for making those expressions of the mind tangible or material. This type of system to me does not reflect a just model upon which to base the market for the exchange of products or expressions from the mind. It favours those that own the means for creating and distributing media. In this case, the owners of publishing houses, recording studios or technological platforms function as the landlords that are able to cash in on the works of authors, even after they are dead.

Second, treating the creative expression of minds in media creates new inequalities rather than enable a progressive open society that builds on the ideas of others and advance the welfare of all human beings. Just as how feudalism later gave rise to monarchy, where power and authority concentrated in the hands of a few, having creative expression of minds being treated as "property" will inevitably lead to the centralization of distribution of creative works in the hands of a few. What is to stop big companies from buying out smaller ones or pricing them out of the market?

Argument 2: Is "Intellectual property" really an appropriate term to refer to creative expressions or the labour of the mind?

For this section of my critique, I wish to raise a series of questions.

1) Are creative expressions of another person's mind worlds that we inhabit? Do we need to pay rent to inhabit or access such a "world"?


2) Are creative expressions products of the mind that can do things to or for other people who find value in those products?

3) For me the issue with "intellectual property" is that it is an inappropriate metaphor for what creative works of the minds are. Why do we select the metaphor of "property" for creative works of the mind and not another? And why does a global organization like WIPO want to enforce what is merely a rhetorical construction in order to create an economy out of it?

Another question that challenges this metaphor or property is:

4) Do we truly own our creative expressions even when what we "create" actually comes from recreating what we have learned from others?

We create from what we have seen, experienced, heard or read. And even when we have something "original", we use language rules and other rules of discourse taught or given to us by society to translate that which we conceive into a mode of expression and onto a medium. As Davies and Harré, (1999) argue, we use language according to rules that “are explicit formulations of the normative order which is immanent in concrete human productions, such as actual conversations between particular people on particular occasions” (p. 33). In addition, whatever we create using language is based on “whatever concretely has happened before, and to human memories of it, which form[s] both the personal and the cultural resources for speakers to draw upon in constructing the present moment” (Davies & Harré, 1999).

5) On that basis, isn't what we create using language and media as expressions of our mind really "private property" or something that should belong to the public?

My Conclusion:
We need to be critical of the idea of "intellectual property" and resist it. For this label of "intellectual property is socially and rhetorically constructed to liken creative expression to "property" or "land" or to something that can be owned.

For me, a more appropriate metaphor is "intellectual labour" which recognizes that a person has done "work" or expended effort to use the rules of language and discourse to construct or translate an expression of the mind into a product that others can consume or make use of. As such, we should recognize and reward creators for labour and efforts involved in making the expression of the mind consumable and accessible to the public. However, such rewards should not extend into unjust political and economic privileges.


Davies, B., & Harré, R. (1999). Positioning and personhood. In R. Harré & L. van Lagenhove (Eds.), Positioning theory: Moral contexts of intentional action (pp. 32–52). Malden, Massacghusetts: Blackwell Publishers.

World Intellectual Property Organization [WIPO]. What is intellectual property. Retrieved from

Sunday, April 19, 2015

Thoughts about copyright

Two events have triggered my expression of thoughts in this blog post. One is a dream that I had about sharing an article on Facebook and finding out that they suspended my account indefinitely as a result of what they called "copyright infringements". The next event was news circulated within my Jamaican library community about the bill before Parliament to extend copyright from fifty to ninety-five years. (I don't know which one is more irritating, although, I figure that the dream came in response to the news).

Let me begin with the dream or the unreal event or what narratology scholar Georgokapoulou (2010) calls the hypothetical story. In the dream, I shared content from a news report on Facebook with quotations and my commentary. A friend reacted to the article and wrote a response. Then my wife was about to write a response, when all of a sudden she said she did not see my online profile any more. That was when I discovered on my attempt to login that Facebook "suspended" my account "indefinitely" for sharing content from the Associated Press that amounted to "copyright infringement". I felt that there was no means to appeal and that I was not warned before they took this action. I further reasoned that an algorithm had done this, as any human being would have seen that I shared only a portion of the text in quotes and added my own commentary to it.

This leads into my next issue, the pending amendments to the Jamaican Copyright Act. I have not completely studied the act but have merely examined at it to confirm what my library colleagues have been discussing. The chief of peeves is this extension of copyright beyond 50 years to 95 years after the death of the author (See section 11-13a of "A bill entitled An Act ", p. 11). This to me is wholly unjust and unwarranted and I hope to advance three reasons why.

1. Unmeritocratic
Giving copyright extension after an author's death does not benefit the author. It likely benefits the family of the author, the publisher or any other entity (individual or institution) that possesses the copyright. As a result, what this act enables is amounting to creating a new privileged class that do not work to earn their wealth but lives off the wealth and royalties of a dead person. This is unmeritocratic and is as just as having a monarchy or landed aristocracy.  In other words, copyright after a author's death is giving rights to individuals and institutions to exploit a dead person's labour and live a life of privilege from such past intellectual labours. At the same time, these privileged individuals and institutions who have not done the intellectual labour to earn from the intellectual work are given the right to restrict others who want to benefit from the same work.

2. Treats intellectual property as superior to physical products
Similar intellectual property like patents last for 25 years (or definitely less than copyright). Yet, patents lead to the creation of more tangible, useful and beneficial products for humanity. Why is it that copyrighted works need to be longer than a patent?

This is especially questionable as popular culture changes and information gets outdated. Hence, I see no reason why copyright should last any longer than patents where a physical product created can be improved and changed for the better over time.

3. A justification for censorship and an unfair monopoly over ideas
Now for this reason, I include the analysis or the example in my dream. For me, copyright amounts to restricting persons or institutions from distributing a work. This is okay while the author is alive, and perhaps even okay for a few years after the author's death in order for family members of the decease to gain some financial support after they have buried their loved one. However, to restrict the distribution of a work for almost a century after the author's death can in no way be seen as a credible way of supporting the family of the author, but as creating an unfair barrier of entry for others to share and distribute the author's work. It forces a monopoly over the author's intellectual property by a few. This is contrary to a free market logic and to a democratic ideal where individuals and institutions are free to exchange and share information and ideas unrestricted by the state.

Given these reasons, I oppose any copyright limit extension. In my opinion, after an author's death, no one individual or institution should be given any right to benefit from the work of the dead author and monopolize the distribution of their ideas for any amount of time over 25 years.


"A bill entitled An Act to ammend the copyright act" (2015, April 2). Retrieved from,%202015.pdf

Georgakopoulou, A. (2010). Reflection and self-disclosure from the small stories perspective: A study of identity claims in interview and conversational data. In D. Schiffrin, A. De Fina, & A. Nylund (Eds.), Telling stories: Language, narratiev and social life. Washington, DC: Georgetown University Press.