Arguments for the abolition of private intellectual property rights

Andreas Von Gunten

Bookcover Front - Intellectual Property is Common Property

3. The Myth of The Individual Creator

The personality rights justifications of intellectual property are, as we have seen in Chapter One, based on the main premise that the creator is the legitimate owner of the results of his creative work, because his personality is realised through his creative work. Supporters of the self-ownership thesis who believe that I might be right with my argument in Chapter Two, that the creative agent does not deserve the surplus from market transactions because of the labour he has put into his work, but that full self-ownership also implies that ideas are owned by the self-owner, would insist that ideas and expressions emerge from individual’s brains and therefore are owned by these individuals exclusively. But this individual creator concept includes two hidden premises. First, it requires that the creator is the sole source of this work in such a way that the result of his creative work can be attributed to him alone;1 and second that in fact he himself as an active and responsible agent is the creator of the work. We will now examine these two hidden premises in more detail.

The creator as a meme copy machine

We usually think of every cultural expression as a result of one or more person’s labour. But it is more than just ‘labour’ that we attribute as the input factor for the result of a creative process. It is a kind of extraordinary creativity, which not every person is fortunate enough to have. For some it is even the divinity which talks to us, through the creator. Our perception of the artist is often that of a genius. But is the creator then really a creator in the sense of being a creative agent, or is he just a means to represent and reproduce what the ‘Zeitgeist’, God or his unconsciousness creates? Is the inventor really an inventor or is he just an explorer of what is already there? In other words, is creativity something where we act as active agents, or is it something which just happens unconsciously inside our neural system?

In the closing chapter of his 1976 book, The Selfish Gene, Richard Dawkins introduces his postulate of the meme (Dawkins 2006).2 In 1991 Daniel Dennett used this concept as an important building block for his account of how human consciousness can be understood from a materialist perspective (Dennett 1993). The term “meme” is an abbreviation of the ancient Greek word “mimeme” which stands for ‘imitator’. A meme is a cultural expression, or a behaviour which reproduces itself while jumping from brain to brain. This happens through human imitation. Imitation is the building block of human culture and tradition. The brain is the copy machine for the memes. Cultural evolution occurs, like biological evolution, as soon as there is information which shows variation, selection and heredity. Memes get copied by imitation. During this copy process they are sometimes changed only slightly, and sometimes they are recombined with other memes, which leads to variation. Some memes are more successful in getting copied than others, which gives us selection. For example the idea of nations and states was more successful than the idea of a society without authorities; the idea of a person-like God was more successful than the pantheistic or animistic world views, or the story of two lovers who are not allowed to come together and eventually commit suicide is told in different variations and settings over centuries, and so on.

The concept of the meme is important for our analysis of intellectual property because it gives us a framework to explain cultural evolution as an interpersonal process from which we cannot postulate one individual as the exclusive creator of a creative work. Ideas cannot realise themselves without brains, but brains are not the creators of ideas, they are just the hosts for the replication process. Even if an individual person recombines different memes, which is more common than the simple copying from one meme, it is still a copying process, which we cannot really operate ourselves actively. It just happens with us, inside our brains. As I am writing this text, I am not really in charge in the sense that I decide which memes I am taking and combining with others. I do of course have the experience of ‘thinking myself,’ but this is not what actually happens inside my brain according to Daniel Dennett (1991).3 Everything I write here is the result of a continuous meme copying and recombination process. One association leads to another. The river of consciousness is full of surprises which I cannot claim myself as an active agent to be responsible for, in the sense that I can insist on an exclusive property right for what comes out of my brain.4 Artists also often talk about having the sense of not being in charge while creating their artwork. They emphasise that they don’t know how it comes about that they are creative. They usually are not aware of what is going on in their consciousness while creating a piece of art, or at least are not able to explain it. It is common that they talk about inspiration on which they depend and that one has to wait until it arrives. Sometimes it does not arrive at all. The idea of the need to be inspired by outside forces to be able to be creative can be traced back to the Muses of Greek mythology. The romantic concept of art, which emphasises that the genius has the benefit to let the divine express itself through the artist, also leads to the idea that the genius himself is not in charge here, but something else is. Human beings and their memes are living in a symbiotic system. Cultural expressions seem to be continuously replicated inside brains, and from brain to brain, so to speak. Each copy is slightly different from its original and is at the same time another original for the next replication procedure. This is important because it shows that all expressions are equal in the sense that they are all copies and originals at the same time. We should not imagine memes as singular representations of expressions or ideas in our brain though. They are rather complex compositions of many different aspects and attributes of them in different places and at different times as Daniel Dennett explains in his multiple drafts model (Dennett 1991:111ff).

The creative process as a collective process

Because ideas jump from brain to brain in the form of memes the creative process has to be seen as a collective process. Every piece of art, every patent, every musical pattern, every behaviour is always the end- and starting point of a continuous collective process of human creativity and innovation. Ideas are represented through expressions. These can be words, images, music melodies, behaviours and so on. There are no ideas without representation, which means that we cannot communicate or experience ideas without them being expressed somehow. The idea-expression relationship is far more complex and controversial than we can discuss in this paper, but for our purpose (to point to the mechanism of cultural evolution through copying) it should be sufficient to understand its general aspects.

Every expression of a human being is the result of the recombination of what has been expressed by someone else and of the meme copying process inside his neural system. We have evidence for the collective aspects of creativity from Ludwik Fleck’s philosophy of science. According to Fleck it is not correct to assume that human beings think individually. We should accept the fact that ‘cognition is a collective process’ (Sady 2012).

A truly isolated investigator is impossible… An isolated investigator without bias and tradition, without forces of mental society acting upon him, and without the effect of the evolution of that society, would be blind and thoughtless. Thinking is a collective activity… Its product is a certain picture, which is visible only to anybody who takes part in this social activity, or a thought which is also clear to the members of the collective only. What we do think and how we do see depends on the thought-collective to which we belong.(Fleck 1935b, cited in Sady 2012)

Fleck is stressing here that without mental content from other members of the thought-collective we belong to, we would not be able to give meaning to our thinking. We could also say that Fleck describes some of the cultural effects of the meme-replication-process. This becomes even more apparent when we look at how Wojciech Sady describes the definition of Fleck’s thought collective:

A thought collective is defined by Fleck as a community of persons mutually exchanging ideas or maintaining intellectual interaction (Fleck 1935a, II.4). Members of that collective not only adopt certain ways of perceiving and thinking, but they also continually transform it—and this transformation does occur not so much “in their heads” as in their interpersonal space.’ (Sady 2012)

The continuous transformation of ideas in ‘their interpersonal space’ is what we could also call cultural evolution. And even if Fleck has provided his account in the special context of the question of how scientific research works, we can easily adapt it to the creative process as such. Not only in science but in every aspect of creativity, cultural evolution is at work. Let us imagine in a short thought experiment a human being born on an island, where his parents have died right after his birth. Somehow he has managed to survive and he is living now as an adult alone on this island. It is rather unlikely that he has started to paint images in his leisure time, but for the sake of the argument, let us assume he did. But what seems to be rather implausible is that he paints images in the style of cubism without any social interaction or cultural heritage. Cubism is a typical example of a phenomenon of cultural evolution and at the same time an example of how our society tends to attribute cultural innovations to individuals even if there is much evidence that it is more an emergence of the “Zeitgeist” than a creative event by a single genius. Pablo Picasso and Georges Braque are usually said to be the inventors of cubism, while at the same time it is considered as a fact in art history that there were different predecessors and influences which prepared the ground to let the new movement arise. We can consider the members of the cubist movement as a thought collective in Ludwik Fleck’s sense and adapt his findings to the process of art production. Even if we consider Pablo Picasso to be one of the most important artists of cubism it does not seem very probable that he would have created the same type of paintings had he lived in the eighteenth century or had he been raised by a worker family in Manchester around 1850. And it also does not seem very likely that cubism would not have evolved if Pablo Picasso had never lived at all.

Nevertheless, it cannot be denied that it was Picasso who painted Les Demoiselles d’Avignon and not some thought collective. There is at least a substantial individual part in the creative works of artists of any kind. There is no artwork without the decision of the artist to start working on it. If he decided to plant trees instead of creating a piece of art, there would be no painting, song or text we could enjoy and analyse. This is definitely true, but the question is, is this enough to consider him as the only source of the result and to provide him therefore with the rights to exclusively exploit the benefits from it? It is undeniable that there lies labour in every cultural artefact, and this labour can usually be attributed to the creators. It was Pablo Picasso who moved the paint brushes to create his Les Demoiselles d’Avignon and not Paul Cézanne. But the fact that this picture looks how it looks cannot be attributed to Picasso alone.

Let us assume the meme model and the thought collective are adequate conceptual descriptions for how human expressions and ideas evolve interpersonally. It still can be said that what we call being creative is what is new or original, and that this is exactly what the individual aspect of creativity represents. The problem here lies in the question: what is to be considered as new or original? As we have seen in the case of cubism, even when we can assign a new category to an artistic style, it has not evolved out of nothing. The borders of such categories are always blurred and arbitrary, and they fade away as soon as we try to find them. And even what we consider as radically new and original in the history of our culture, like cubism, or as another example the theory of relativity formulated by Albert Einstein, can be traced back to former works by other individuals which were necessary foundations for Picasso or Einstein to make their discoveries. There is never anything radically or totally new in human culture. Every cultural expression evolves slowly from its predecessors. Evolutionary steps are very small: so small that they usually are not detected. It is the last straw that breaks the camel’s back. The famous big theories, the so-called new inventions in art or the great discoveries in science are always results of long-lasting interpersonal creative and evolutionary processes. It looks as though it is mere luck that the memes are combined in a particular way inside a neural system from a specific individual and not through someone else’s. Of course, the artist or the scientist has often contributed a lot of personal education and work to bring themselves into the position to be able to make this very last important step for a new discovery or a new kind of cultural work. But it remains a small step compared to the whole process which was needed before he could take this step. Albert Einstein knew this as well. He said at a meeting of the National Academy of Science in 1921:

When a man after long years of searching chances on a thought which discloses something of the beauty of this mysterious universe, he should not therefore be personally celebrated. He is already sufficiently paid by his experience of seeking and finding. In science, moreover, the work of the individual is so bound up with that of his scientific predecessors and contemporaries that it appears almost as an impersonal product of his generation. (Einstein 1921:579)

The creator or author is far from being passive in this process. As we have seen above, it was Picasso who painted his paintings and it was Einstein who wrote his papers. So there is definitely an important individual part in every cultural work. But when we take the collective aspect of the creative process we have sketched so far into consideration, it looks like it just does not seem to be justified to attribute the originality to the individual by whom it was expressed. The person who creates a work should not be seen as its author or creator but more as its source. This kind of attribution gives respect to the individual part without stressing it too far. There are many practical reasons to attribute the work to a source. It helps others to refer to it, it may help to understand it better, it may even help to give some other kind of reward (e.g. money) to its source. But just because we are the source of a piece of work, we cannot thereby claim that we are the single author or creator and therefore the owner of it. Such a treatment of the work is also in line with Kant’s account of the personality rights of an author. While attributing the source of an expression, we esteem the individual part one has on the creation of a cultural expression without making him the sole creator and exclusive owner.

Both the postulation of a meme theory and the concept of the thought collective may lead to several objections. The most important is that the concept of free will may not be compatible with these views. Meme theory as proposed by Daniel Dennett has to be considered as a materialistic theory of the mind. Materialistic theories of the mind and the concept of the thought collective can be called deterministic in their character. It is disputed whether free will is compatible with determinism or not, and we cannot discuss this question in this paper. And it is true that if we hold the view that free will exists and that it is not compatible with determinism we have to reject meme theory and maybe Fleck’s thought collective as well. But we could still accept that creativity and innovation are more to be perceived as interpersonal than individual processes; we just have to find another theory which is not in conflict with free will. Anyone who insists on the view that ideas and expressions are naturally owned by the individual from whom they occur, must also provide a plausible theory as to how minds produce ideas independently from their social environment. I do not assert that such a theory does not exist, but I have not come across one yet. But if we accept that we are merely a source rather than a creator of cultural expressions, and if the only thing which we can take into account for intellectual property rights is the labour we have contributed and not the creativity itself, there seems to be little ground for any personality-based account of intellectual property rights. The only hope for the justification of the personal property of cultural expressions and inventions lies now in the utilitarian arguments, which are the ones we are going to examine in the following chapter.

1. There are also situations where a work is attributed to more than one person, like multiple authors for a text, or the composer and the lyricist for a song. But for the sake of simplicity I always talk about one creator.

2. Memes as they are used in this paper and by the proponents of a meme theory are not be confused with the same name for Internet phenomena which are shared widely through social networks. For a comprehensive account of meme theory see Blackmore (1999).

3. Dennett’s materialistic account of how consciousness should be understood is contested, but I assert that a theory for an interpersonal process of creativity could also be developed on the basis of idealism.

4. This does not mean that I do not have free will, as we will see later.

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2. Control Rights and Income Rights, or Does The Creator Deserve His De Jure Monopoly?

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4. A Just Society with Intellectual Commons