Lewis Hyde’s Common as Air isn’t just another book about copyright and intellectual property. It’s the kind of return-to-first-principles that should happen a lot more often.
This subject is usually a battle of slogans, from “information wants to be free” on one side to “theft is theft” on the other.
Hyde doesn’t go there. Instead he roots back through American and English history to examine two questions: What is property anyway? And what did the Founders think they were doing when they gave Congress the power to establish patents and copyrights?
The usual answer to the first question is that property means private property; the paradigm is a person owning a house. This is often presented as if it were natural and prior to society or culture. But Hyde goes back into English history to revive the alternate property model of the Commons.
The Commons turns out to be a lot more complex and nuanced than “The Tragedy of the Commons” would have you believe. A common was never a lawless wasteland that anyone could exploit at will. Instead, a common was land owned collectively by a community of “commoners”, who had variously defined rights subject to various restrictions. That’s why the model endured for centuries, without tragedy.
Second, the Founders were not thinking in terms of “intellectual property” at all. Instead, they saw patents and copyrights in terms of government-granted monopolies. In general, they disapproved of such monopolies, which were the crony capitalism of the 18th century. (A 20th century example: Gandhi’s Salt March protested a licensed salt monopoly in India.)
Patents and copyrights, then, were not viewed as government recognizing some natural property right. Instead, they were useful evils, in which the government granted artists and inventors temporary monopolies in exchange for communicating ideas that would eventually enter the public domain. Hence the phrasing of Article I Section 8 of the Constitution:
The Congress shall have the power … to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries
Patents and copyrights were devices for managing the public domain as an informational commons. A vibrant public domain was the goal; the current system, in which copyright is essentially eternal for anything created after Mickey Mouse, would have horrified the Founders.
Hyde fleshes out this picture by examining how individual Founders viewed their writings and inventions. Franklin, for example, never tried to patent his inventions — not the Franklin stove and not the lightning rod. When Jefferson invented a new process for processing hemp, he wrote to a friend
I shall probably describe it anonymously in the public papers, in order to forestall the prevention of its use by some interloping patentee.
The most interesting part of the book is the hardest to explain, and I think I’ll have to recommend that you go read it: Hyde relates a society’s large-scale structure to its view of what a person is and should be. The current system, with individually owned property as the paradign, promotes the ideal of the autonomous individual, who is connected to and responsible for no one unless s/he chooses to form such connections.
The Founders lived with a different ideal, a public citizen, whose identity intertwined with the community s/he lived in, and who took payment in honor as much as money. Franklin, for example, did not disdain money in any way. But he also gloried in his reputation as a public benefactor, who saved the community from lightning.