The Property Question

The question of whether there is intellectual property can only be answered under a particular understanding of property. Now there are four different ways in which some information could be property. Each way understands the government and the law in different ways.

The first way is the social contract theory. Under this theory, information is property because the government says that it is. Since everyone consents to be governed, they must accept the laws of the government. Apart from the regulations of the government, no property exists at all, whether physical or intellectual. This usually means that right and wrong are defined by the laws of the government. Under this theory, the actual laws of the government create property in the same way that they create morality.

The second way is that of public property. Under this theory all information is owned by the public. However, the government is the agent of the public and decides how that information is used and by whom. So when the government says that a particular author has a copyright to a book, it is really denying copying permission to everyone but the author and those the author permits.

The third way is what I am calling source ownership. Under this theory, a person owns a piece of information that they have 'created', and all of the copies of that same information. However, if someone else should have 'created' the same piece of information on their own, then each retains information over their own piece of information.

The fourth way is what I am calling information ownership. Under this theory, a person owns a piece of information and every instance of that information. This owership extends to instances of that information that were not copied from first person to 'create' it.

The difference between the third and fourth way is not merely theoretical. In some cases patents have been filed to preempt someone who had discovered the same process at about the same time. Both persons were working independently. This has happened relatively often. In another case, altered DNA has been copyrighted. Since the DNA was altered for experimental purposes, it is not unlikely to suppose that another would alter the DNA in the same way.

The first and second ways are also different. Under social contract theory, property would not exist without the government. On the other hand, it exists in the public if it is public property. So it would exist even if the government did not. Furthermore, there may be a right or wrong way for the government to administer public property, but not if that property exists because of a social contract.