Since the move to a more digital age, the term “intellectual property” has endured some criticism. There are those who hold the view that intellectual property is not the same as real or personal property. The lack of tangibility makes things like songs, paintings, plays, computer programs, and books different (while of course things like books and paintings themselves are tangible, the idea from which the book or painting took shape is at issue here). The argument approximates the idea that the rights extended to tangible property should not equally apply to intangible ideas. Granted, not even the most fervent defender of such a stance would argue copyright and trademarks should be abolished completely, but they still view the tangible and intangible property as different. I will endeavor to articulate why they are, in fact, the exact same.
The most basic theory of property comes from, who else, but John Locke. He explained that in nature, things existed without much value. Their natural state in the world did not benefit anyone in any real sense. An apple tree filled with apples is great, but left alone it will grow and bloom, only to rot and die. It wasn’t until man imbued the apple tree with his labor that the tree had value. By bringing the tree into his domain, the fruit was valuable because now he could eat the apple, he could feed his family, and he could even trade or sell the apple for something else he needed. His labor created value and thus made the tree, or at least the apple he picked, his property. In the state of nature, we all have an equal stake in the tree. It isn’t until one acts upon it that value is created. Once I pick an apple, you no longer have a claim on it. Instead, you must provide something to me in order to gain dominion over it.
This same principle applies perfectly to intellectual property. Think of the alphabet, colors and music notes as an metaphorical apple tree, swirling around in the ether. We all have an equal stake in the alphabet: no one owns the ABCs. Once I pick out letters from the swirling ether around me and place them on a page in an order that is new, an original expression of my own design and device, I have a valid claim in the creation. The tree, in this case the alphabet, is still in a state of nature, ready to be picked by anyone who so chooses, but the letters I have picked and arranged on my own are unique and valuable because of my efforts. Without such efforts, the apples would still be on the tree and this work would be nothing more than a dream.
I love to play guitar. Though I am not very good, I can fumble my way around the neck and occasionally make a pleasant sound. My guitar has six strings and 23 frets. That creates 138 individual notes I could play. I can play them individually, or I could combine them to create a chord. I could change the tuning of the guitar and create untold new variations of sounds and chords to be played. When I play, I could pick just the right notes, at just the right speed and order to create the most beautiful love ballet human ears have ever heard. But, no surprise, I don’t have the knowledge or the skill set to do so. Thus, my love ballet exists only in time and space. But when someone like John Mayer picks up the guitar, he has both the skill and knowledge to do exactly what I cannot. He is a master of guitar and has the ability to pick that perfect set of chords out of the ether and suddenly create something of value. Both Mayer and myself have the same opportunity to create value from the tree of guitar, but once he actually does so, he has created value out of something I cannot. This is the basis of intellectual property.
While intellectual property might not be tangible, that does not render not real, nor does it undermine its value. The labor of putting together letters to create words, to create sentences, to create phrases, to create sonnets is labor the same as picking an apple from a tree. Like a bowling ball at the top of a hill, words and notes have tremendous potential; however, until acted upon by an outside force, they will remain in that state indefinitely. Just as the bowling ball needs to be pushed to create kinetic energy that can impact the world around it, so too must ideas be acted and labored upon by people to create beauty and value. Without such labor we don’t have Romeo and Juliet, the Shakespeare play or Dire Straits song, nor do we have Jack and Jill, the nursery rhyme or, for better or for worse, the Adam Sandler movie.
If no property rights arise out of creative labor, there is little incentive to create. Why does a song have any less value than a cow? Why should an author not have the same rights in his book as a farmer has in his crops? These creators have imbued their works with a part of their soul, and it is this labor and transfer of effort that create intellectual property rights.
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