Possession is the natural state of actually physically having some item. An item can only either be in your possession or not. Maybe there’s some ambiguity if several people are holding the same item, but we can say that everyone holds the item possesses it. The idea of possession comes naturally from being able to carry and use things.
From the state of possession comes the natural rights to take and leave. If an item exists, taking it is the action of moving from a state of not possessing that item to the opposite. Similarly, leaving an item is the opposite action.
With that understood, let’s consider the concept of ownership. If an item is not owned by anyone else (or if the owner permits), I can claim ownership of that item. Ownership supersedes the right of others to take that item without my granting them license to do so.
Items that are owned are said to be property. Such property can be privately owned by a single individual, collectively owned by several individuals, or publicly owned by some public entity like a government.
Interestingly, Aristotle defined freedom as the extent to which one owns one’s self. In other words, your ability to control yourself determines your level of freedom. If you have absolute self control, you are absolutely free. Otherwise you are to some extent a natural slave to your desires.
Hume argued that there is no natural “mine” or “thine”, and that ownership must be understood as the creation of a sovereign state or the artificial product of a convention “enter’d into by all the members of the society to bestow stability on the possession of…external goods, and leave every one in the peaceable enjoyment of what he may acquire by his fortune and industry.”
Locke argued that ownership arises naturally since we naturally own ourselves and from this follows ownership of other items by our own labour, but this seems to confuse the concepts of possession and ownership. We naturally possess ourselves, but do we naturally own ourselves? As defined above, ownership is a protection from the rights of others to take items that are not in our possession. How can we cease to possess ourselves that ownership might prevent others from exercising their right to take? The idea is nonsensical.
While not arising naturally, ownership of any kind is useful. It would be impractical to require that in order to assure your continued ability to possess an item, you must keep others from possessing it at all times. A collective agreement that you own an item means you can spend your time productively instead.
Intellectual property dates back at least to the Ancient Greeks, but it is clear that it isn’t the same as regular property since as with self-ownership, it isn’t obvious that we can ever cease to possess an idea. If I tell someone an idea of mine, we both possess the idea. There is no scarcity of ideas.
The protection of intellectual property by ancient societies was not codified in law, but by franchises or royal favours. Bugbee makes the distinction that these cases were works that were in the public domain being removed from the publi by some authority, as opposed to a creator depriving the public of something that did not previously exist.
One of the first codified protections was by the Republic of Florence in 1421, wherein an architect was granted certain rights to an his invention of a barge with hoisting gear for carrying marble. This precedent was useful at least in that it incentivized creation of new works. This became known as the Florentine patent statute. Specifically, the statute protected the architects right to build the barge, not the idea itself.
Literary works were unprotected until the Gutenberg printing press was invented in 1450, and even then few copyrights were granted.
The English Statute of Monopolies (1624) and the Statute of Anne (1710) extended this idea by ending the practice of patenting unoriginal ideas and works which were already in the public domain. The Statute of Anne is considered to be the first codification of copyrights, in which authors were granted the control of the copying of their work for a fixed period with the explicit intent to incentivize writing. The statute specifically mentions the common practice of copying and reprinting works by printers.
The Statute of Anne shifted the protection from the ability to create an object based on an original idea to the protection of the idea itself. The protection was from physical books being created from the same intellectual material, but the underlying notion was that the creators deserved to be rewarded for their creation. International copyright law has since been expanded by the Berne convention and the TRIPS agreement, but the same notion applies.
One fundamental question that must be asked is to what extent do creators have the right to be rewarded? Unquestionably, the creation of novel ideas benefits us all, but each protection we give creators is a right that we are taking from users.
For example, the recently passed Canadian Copyright Modernization Act Bill C-11 extends many user rights to copyrighted work, but all of these rights are trumped by a digital lock on the work. Additionally, it is now illegal to break digital locks for any purpose, and it is illegal to distribute tools which might break digital locks. Is it really within the purview of protecting creators’ rights to be rewarded to remove the right to distribute creations not in any way related to the creator’s work?
In answering the question of rewarding creators, we must also answer the question: how much does copying of a work hurt a creator? Cory Doctrow argues that excessive copyright hurts creators. One of Doctrow’s main points is that digital locks send the message that if you buy a work then it may be taken away at any time, but if you steal it you can keep it forever. In this sense, Doctrow is saying that digital locks prevent ownership of a copy of the work.
Doctrow’s eponymous law states “anytime someone puts a lock on something you own, against your wishes, and doesn’t give you the key, they’re not doing it for your benefit.”