In the preceding discussion, I argued that Locke's labor theory can serve as a powerful justification for intellectual property. But beyond intellectual property, a Lockean model thickens with the ingredients of modern life: financial markets, capital accumulation, service industries, inheritance, and the like. Those who try to apply Locke to all modern property end up multiplying distinctions like pre-Copernican astronomers calculating celestial orbits with their Ptolemaic epicycles. At some point, it becomes easier to reorient one's universe.
The most powerful alternative to a Lockean model of property is a personality justification. Such a justification posits that property provides a unique or especially suitable mechanism for self-actualization, for personal expression, and for dignity and recognition as an individual person. Professor Margaret Radin describes this as the "personhood perspective" n167 and identifies as its central tenet the proposition that, "to achieve proper self-development -- to be a person -- an individual needs some control over resources in the external environment." n168 According to this personality theory, the kind of control needed is best fulfilled by the set of rights we call property rights.
- Like the labor theory, the personality theory has an intuitive appeal when applied to intellectual property: an idea belongs to its creator because the idea is a manifestation of the creator's personality or self. The best known personality theory is Hegel's theory of property. n169 This section sketches his property theory, its application to intellectual property, and some problems of using the personality theory as a justification for intellectual property.
In the field of intellectual property, the personality justification is best applied to the arts. This is true both in theory and in European legal systems that have recognized a personality basis for property. Efforts to introduce the personality justification into American law frequently appeal to those European intellectual property laws. n170 As an alternative, I suggest ways to [*331] bring civil liberties doctrines to bear on intellectual property and, in so doing, inject the personality justification into American intellectual property law.
1. The General Hegelian Philosophy
At the heart of Hegel's philosophy are his difficult concepts of human will, personality, and freedom. For Hegel, the individual's will is the core of the individual's existence, constantly seeking actuality (Wirklichkeit) and effectiveness in the world. Hegel perceives a hierarchy of elements in an individual's mental make-up in which the will occupies the highest position. As one of Hegel's biographers wrote, the Hegelian will is that in which thought and impulse, mind and heart, "are combined in freedom." n171
We can identify "personality" with the will's struggle to actualize itself. Hence Hegel writes that "[a] person must translate his freedom into an external sphere in order to exist as an Idea" n172 and that "[p]ersonality is the first, still wholly abstract, determination of the absolute and infinite will." n173 For Hegel, "[p]ersonality is that which struggles to lift itself above this restriction [of being only subjective] and to give itself reality, or in other words to claim that external world as its own." n174
To the classical liberal, true freedom is a freedom from external restraint. For Hegel, freedom is increasingly realized as the individual unites with and is expressed through a higher objective order: a unity which, to the classic liberal, is tantamount to drowning the individual in the larger "geist" of social groups. In the words of R. N. Berki, Hegel's notion of "philosophical freedom grows with comprehensiveness and with ever higher degrees of realized self-determination, thus, an animal is freer than a physical object, a man freer than an animal, the family freer than the individual, the State freer than the family, World-History freer than the State." n175 Berki's summary is instructive [*332] on the difference between liberal and Hegelian notions of freedom: this difference is more about the proper receptacle of freedom than about the nature of freedom. Both recognize freedom as involving expression and realization. The liberal reposes this freedom in the individual while Hegel discards the individual when he believes it is time to pursue freedom to new and dizzying heights.
In his property theory, however, Hegel focused on the immediate freedom
of an individual. n176 So at this level the liberal's
critique of Hegel should be most muted. The liberal still differs from
Hegel by defining freedom as the absence of restraints, but this negative
definition means little without the positive freedom to act upon things.
In Camus' Caligula, n177 the despotic Emperor declares
himself to be the most free man in the world because no wish is denied
him. Caligula has few external restraints; he can manifest his will on
anything within the reach of Imperial legions or roman sesterce.
Caligula's claim to be a model of freedom for his people is faint comforts to them because they frequently are the things upon which he manifest his will. At least at the level of individual freedom, Hegel denounced such manifestations of will upon others. n178 Caligula's material self-indulgence points to a weakness in both Hegelian and classical liberal theories: the need to sort out the effects upon other people of an individual's exercise of freedom over inanimate objects. n179 In Hegel's system, property is a genre of freedom and, like any other freedom, it may have deleterious on other.
2. The Property/Person Connection
Drawing upon his model of the hierarchy of elements in the individual's make-up, Hegel implies that the will holds the "inferior" elements of the self as if they were a type of property. n180 It is worth noting that this view is not very distant from Locke's initial premise that "every Man has a Property is his own Person." n181 Assuming that the self is a type of property, the difference between internal property of this sort and property external to the person is that the latter can be alienated. This reasoning can lead to an abandoning of barriers in both directions. As Dudley Knowles put it: "[T]he [*333] contraction of the core of one's property into the sphere of personality (life, limb, and liberty) licenses the expansion of the concept of personality to cover those physical objects which are deemed to be property." n182
According to Hegel, the will interacts with the external world at different levels of activity. Mental processes -- such as recognizing, classifying, explaining, and remembering -- can be viewed as appropriations of the external world by the mind. n183 Cognition and resulting knowledge, however, are the world imposing itself upon the mind. The will is not bound by these impressions. It seeks to appropriate the external world in a different way -- by imposing itself upon the world. This is the true purpose of property and, perhaps to emphasize that purpose, Hegel explicitly disavows any need for the institution of property to satisfy physical wants. n184
Acting upon things is an initial step in the ongoing struggle for self-actualization. Socially mandated property rights do not trigger this self-actualization; they are only a means to protect the individual's initial attempt to take command of the world. Once we accept that self-actualization is manifested in enduring objects as well as in fleeting acts, property rights acquire an important purpose in preventing men from forever being embroiled in an internecine conflict of each individual trying to protect his first forays at self-actualization from the predation of others. Property becomes expression of the will, a part of personality, and it creates the conditions for further free action. n185
Respect for property allows the will to continue abstraction and "objectification." With some property secure, people can pursue freedom in non-property areas or they may continue to develop themselves by using property to move themselves toward the person they wish to become. Knowles has clearly depicted the Hegelian interaction between property and personal development: "Imaginative conceptions of our future selves are indistinguishable from fantasy or day-dreams unless they are supported by acquisition, investment, or planned savings. . . . Anyone who wishes to conduct an inventory of his desires may profitably begin by walking round his own dwelling or looking into his wardrobe." n186
Property is not just a matter of the physical world giving way to assertion of the self, for the society must acknowledge and approve property claims. Through society's acceptance of the individual's claims upon external objects, [*334] possession becomes property, and the expression of the individual becomes more objective. n187 for Hegel, increased objectivity is increased freedom in part because social recognition of a person's claims to private property demonstrates that the individual's claims comport with that social will.
To make a claim is not to give vent to an appetite; it is not to be demanding in a way that even an animal can be. It is to make a moral gesture that has meaning only between persons who recognize one another as persons. . . . The creature that aspires to freedom is a social being and can get what it aspires to only in society -- or, in the language of Hegel, it belongs to an ethical universe and can achieve freedom only inside it.
The individual person comes to be manifested in some object through "occupation" and "embodiment." n188 Although much of Hegel's language seems to support either a "first possession" theory or a labor theory, neither accurately captures what he means by occupation. He characterized possession of the object as the initial step in property, n189 but this is because the will can only occupy a re nullius -- either a virgin object or something that has been abandoned. n190
Abandonment occurs easily in the Hegelian system because the relationship between person and object is fluid. Being first in possession of an object is not sufficient to maintain title to it; the property relationship continues only so long as the will manifests itself in the object. Because "the will to possess something must express itself," n191 a person who fails to reaffirm constantly this expression can "lose possession of property through prescription." n192 The individual also can actively withdraw his will; this is the basis of alienability. n193
Labor often is the means by which the will occupies an object. n194 But while labor may be a sufficient condition for occupation, it is not a necessary one. For example, one may manifest one's will in a gift or in a natural object to which one becomes emotionally attached. n195 There is a rock on my shelf from the coast of Corsica that reminds me of days spent there. My will occupies that rock without wishing to change it and without having labored upon it. This exemplifies another non-condition of occupation; Hegel specifically [*335] argues that an individual need not use an object to occupy it. n196
This is not to say that there are no objective indicia of the will's occupation. Hegel sets out three ways in which the will may occupy an object: physically seizing it, imposing a form upon it, and marking it. n197 This would not appear to be an exhaustive list of events that signal possession, nor is Hegel precise in defining these three events. Thus he finds use, when aimed toward preservation of the object, equivalent to "marking it" because it shows the will's desire to make the object a permanent part of the inventory of things utilized and enjoyed by the individual. n198
Hegel seems to envision spatio-temporal proximity between the individual and the object, but that too is only indicia rather than a requirement. Unlike the labor theory, Hegel's personality justification focuses on where a commodity ends up, not where and how it starts out. . . . [I]t focuses on the person with whom it ends up -- on an internal quality in the holder or a subjective relationship between the holder and the thing, and not on the objective arrangements surrounding production of the thing. n199
As Radin points out in this passage, the connection between personality and property is open-ended. A person could claim a personality stake in any material object, meaning that the personality justification is liable to excessive claims. It is a theory that allows Virginia Woolf to claim a room of her own, but also allows Louis XIV to claim the 2,697 rooms of Versailles.
This subjectivity causes unhealthy identifications with property that should not give rise to legitimate property claims. Early in his writings, Hegel hinted that certain self-identifications with property were destructive to the individual. For example, in the Theologische Jugendschriften, n200 Hegel argues that the ownership of property can stand in the way of complete harmony between individuals in love. "The dead object in the power of one of the lovers is opposed to both of them, and a union in respect of it seems to be possible only if it comes under the dominion of both." n201
This destructive effect of property should be distinguished from the alienation that later came to propel Hegelian and Marxian social criticism. It differs from the problem of a laborer who attaches his existence to objects that he produces but does not own: the plight for such a laborer is that his identity is attached to something that is not his property. Nor is this the problem [*336] of a person owning things with which he does not identify. n202 In the Jugendschriften, the problem is that a person owns and identifies with some property to his own detriment; it prevents a greater happiness in the form of a love relationship.
Generalizing from this example, we might say that a person's identification with property is "unhealthy" when it prevents that person from maximizing self-actualization from other sources -- lovers, friends, careers, peer groups, other property, and even feelings antithetical to the possession of property such as the flower-child freedom of the 1960s. The complexity of maximizing self-actualization usually makes us defer to the judgments of the individual. However, when the industrialist is inextricably in love with the flower child, we may conclude that his property is unhealthy for his present and future self-actualization.
Radin also has expressed concern about the adverse effects of property on self-actualization. However, she focuses concern on the detrimental impact of property on people other than the property owner. She distinguishes between "fungible" and "personal" property, the latter being property which increases self-actualization. She adopts the principle that property fungible to person X should be denied to X if giving that property to X would deny personal (that is, self-actualizing) property to Y. n203
Radin's standard accords with Hegel's own reasoning. In addressing the severe inequality of property distribution in his own day, Hegel argued that his system required only equality as to the possibility of obtaining property. n204 Hegel implicitly endorses the view that property can be denied to person X if giving this property to X would deny Y the possibility of obtaining property. Under Radin's standard, whether an act of appropriation is "healthy" depends upon whether it has deleterious effects on others. This standard has a resemblance to Locke's "enough and as good" condition. As long as there is enough and as good potential property for the self-actualization of others, one may appropriate.
In fact, Radin's principle of "fungible" and "personal" property is the "enough and as good" condition unless we construe it in one of two ways. The first construction would require people to disgorge their fungible property, even when there is "enough and as good." This position does not make much sense if subjective judgments determine personal attachment to property. Property that objectively appears to be fungible may actually be personal; [*337] occasionally someone will have a personality stake in U.S. Savings Bonds or GM stock.
The second construction would not require people to disgorge personal property even when there is not "enough and as good" property available to all. This position makes some sense on a cost/benefit rationale: with truly personal property, we may be damaging the self-actualization of the property-loser as much as we would augment the self-actualization of those to whom the property is distributed. In a world of property shortage, some persons will be malnourished in their self-actualization. It is just a matter of who.
The fungible/personal distinction therefore renews the subjectivity dilemma, a problem recognized by Radin. "Fungible" and "personal" are strong intuitive guides in a culture enamored with economic analysis. Stock portfolios, mining rights, and tons of wheat are fungible; photos, diaries, and pets are not. Yet this leads us nowhere with the person willing to sell his grandmother or the person who keeps pet wheat. We are left with either an artificially constrained or an entirely subjective measure of when property actualizes the self.
3. Intellectual Property Under Hegel
For Hegel, intellectual property need not be justified by analogy to physical property. In fact, the analogy to physical property may distort the status Hegel ascribes to personality and mental traits in relation to the will.
Hegel writes:
Hegel takes the position that one cannot alienate or surrender any universal element of one's self. Hence slavery is not permissible because by "alienating the whole of my time, as crystallized in my work, I would be making into another's property the substance of my being, my universal activity and actuality, my personality." n207 Similarly, there is no right to sacrifice one's life because that is the surrender of the "comprehensive sum of external activity." n208 This doctrine supplies at least a framework to answer the question of intellectual property that most concerns Hegel. It is a question we ignore today, but one that is not easy to answer: what justifies the author in alienating copies of his work while retaining the exclusive right to reproduce further copies of that work?
A sculptor or painter physically embodies his will in the medium and produces one piece of art. When another artist copies this piece Hegel thinks that the hand-made copy "is essentially a product of the copyist's own mental and technical ability" and does not infringe upon the original artist's property. n209 The problem arises when a creator of intellectual property does not embody his will in an object in the same way the artist does. The writer physically manifests his will only "in a series of abstract symbols" which can be rendered into "things" by mechanical processes not requiring any talent. n210 The dilemma is exacerbated by the fact that "the purpose of a product of mind is that people other than its author should understand it and make it the possession of their ideas, memory, thinking, &c." n211 This concern for the common of ideas is familiar.
In resolving this dilemma, Hegel says that the alienation of a single copy of a work need not entail the right to produce facsimiles because such reproduction is one of the "universal ways and means of expression . . . which belong to [the author]." n212 Just as he does not sell himself into slavery, the author keeps the universal aspect of expression as his own. The copy sold is for the buyer's own consumption; its only purpose is to allow the buyer to incorporate these ideas into his "self."
Hegel also identifies the instrumentalist-labor justification as a consideration against granting full rights of reproduction to buyers of individual copies [*339] of a work. Hegel admits that protecting intellectual property is "[t]he purely negative, though the primary, means of advancing the sciences and arts." n213 Beyond this, Hegel says little. He declares that intellectual property is a "capital asset" and explicitly links this label to a later section in which he defines a "capital asset." n214 There is considerable literature on how Hegel did not develop the idea of "capital" to its logical conclusions, n215 but here "capital asset" can be understood as property which has a greater tendency to permanence and a greater ability than other property to give its own economic security.
B. PROBLEMS IN APPLYING THE PERSONALITY JUSTIFICATION TO INTELLECTUAL PROPERTY
A property system protecting personality will have difficulty finding reliable indicia for when people do and do not have a "personality stake" in particular objects. The personality justification also leaves some nagging theoretical questions. Even if we reliably could detect when a person possesses a "personality stake" in an object, we surely would find that personality is manifested to varying degrees in different objects. This is the personality counterpart to the varying amounts of labor one "puts" into different objects. Neither personality nor labor is simply an on-off proposition. The question is: Does more personality warrant more property protection?
This problem also has a "categorical" aspect -- different categories of intellectual property seem to lend themselves to different amounts of "personality." Poetry seems to lend itself to personality better than trade secrets, symphonies better than microchip masks. Should poetry as a category receive more protection than microchip masks. Should some categories receive no protection at all from the personality justification? Finally, the theory suffers from internal inconsistency in its somewhat incoherent account of alienation.
1. Varying Degrees of Personality in Intellectual Property
One of the problems with the labor theory discussed in Part II is that some intellectual products have no apparent social value or require no labor to produce, leaving these pieces of property unjustified by the labor theory. The personality justification has the same problem with those intellectual products that appear to reflect little or no personality from their creators. As with the labor theory, we can overcome this difficulty with a utilitarian principle [*340] that justifies property rights on the grounds that they protect the "net gain" of personality achieved by the entire system. This avoids the question of whether or not personality is present in every case of intellectual property. Yet the personality justification has this same "coverage" problem at a "categorical" level. With a controversial exception mentioned below, there seem to be no categories of intellectual property that are especially more or less hospitable to the labor theory. This is not true with the personality justification. Some categories of intellectual property seem to be receptacles for personality; others seem as if they do not manifest any "personality" of their creators.
Poems, stories, novels, and musical works are clearly receptacles for personality. The same can be said for sculpture, paintings, and prints. Justice Holmes aptly characterized such works as "the personal reaction of an individual upon nature." n216 Another receptacle for personality is the legal concept of an individual's "persona." The "persona" is an individual's public image, including his physical features, mannerisms, and history. n217 In the U.S., it is debated whether or not the personal should be considered intellectual property at all. The answer to this question may turn on what justification we use for intellectual property.
The persona is the one type of potential intellectual property which is generally thought of as not being a result of labor. n218 Even if the persona is considered to be a product of labor, people would work on their personas without any property rights being necessary to motivate them. Therefore, the instrumental labor justification is not necessary. In contrast, the persona is the ideal property for the personality justification. No intermediary concepts such as "expression" or "manifestation" are needed: the persona is the reaction of society and a personality. Property rights in the persona give the individual the economic value derived most directly from one's personality. n219 As long as an individual identifies with his personal image, he will [*341] have a personality stake in that image. n220
The problems for the personality justification do not arise in justifying these obvious expressions or manifestations of personality, but with those kinds of intellectual property that do not seem to be the personal reaction of an individual upon nature. Even in the field of copyright these problems arise. While most of the personality-laden categories are protected by copyrights, copyrights protect more than just personality-rich objects. Atlases and maps are a good example. In the early days of oceanic explorations, mapmakers competed with one another on their claims of accuracy. Today, the same competition does not arise because the generic information is already there in the form of old maps and publicly held government materials. n221 The result is that maps have a tremendous uniformity. There may be personality galore in a map of Tolkien's Middle Earth, but not much in a roadmap of Ohio. That does not mean maps are absolutely devoid of personality. Certainly a new form of map manifests personal creativity, as in the case of Peter Arno's revisions of the Mercator projections. n222 Even in everyday maps, there can be artistic content or social commentary in the choices of color, identifying symbols, and information included. n223
More difficult problems for the personality justification are posed by copyrightable computer software and other technological categories of intellectual property: patents, microchip masks, and engineering trade secrets. These items usually embody strongly utilitarian solutions to very specific needs. We tend not to think of them as manifesting the personality of an individual, but rather as manifesting a raw, almost generic insight. In inventing the light bulb, Edison searched for the filament material that would burn the longest, not a filament that would reflect his personality. Marconi chose to use a [*342] particular wavelength for his radio because that wavelength could travel much farther than waves slightly longer, not because that wavelength was his preferred form of expression.
In a report related to the recently enacted microchip mask protection law, n224 the House Judiciary Committee discussed attempts by some microchip inventors to protect chip designs by copyrighting photographs of the chips' layout as artistic designs. n225 This clear attempt to use a system designed to protect personality-rich art for the protection of engineering designs exudes irony. The House Committee concluded, as most of us do, that engineering designs are characterless and without personality. As congressmen or consumers, we generally think that state of the art is not art. n226
Yet technology may not be categorically different from atlases and maps. The primary goal of computer programs is to produce a particular result using as little software and hardware as possible. But writing programs, like creating logical proofs, can involve a certain aesthetic vision. n227 Within the constraints of efficiency, it is frequently possible to write a program a number of ways -- some simpler, some more byzantine; each depicts a particular style for resolving the problem. If there are ten ways to write a program of roughly the same efficiency, it seems perfectly reasonable to think that the choice among the ten may demonstrate personality. n228
It is an oversimplification to think that some genres of intellectual property cannot carry personality. This oversimplification avoids the true issue of the constraints of economy, efficiency, and physical environment which limit the range of personal expression. Such constraints exist to some degree in every genre. Few movies or plays can afford to ignore the average attention span of audiences or the limits of a budget; the artist in the plastic arts is constrained by the physical properties of the materials; the architect faces these material constraints with the additional limits of plot size, location, and zoning regulations. The computer programmer and the cartographer are further along the spectrum of constraint, but even they can embellish their works to suit at least some of their own predilections. The genetic researcher [*343] or the aerospace engineer are even more constrained; their slightest embellishments may be dangerous indeed.
The more a creative process is subject to external constraints, the less apparent personality is in the creation. At some point, these constraints on a particular form of intellectual property may be too great to permit meaningful expressions of personality. We may determine that the personality justification should apply only to some genres of intellectual property or that the personality generally present in a particular genre warrants only limited protection. n229
In the ideal situation, before we made such a determination we would ask the creator what personality she sees in her creation. As mere consumers we may think a genre of intellectual property too constrained to permit expressions of personality, while the majority of creators in that genre may think that their works do express personality. Subtle manifestations of personality may be visible only to people knowledgeable in that field. n230 Just as chess players can recognize particular moves as reflecting the personality of certain players, particular moves in a computer program or a chemical process may be characteristic of a particular inventor or group.
This subjective inquiry approaches personality stake as being a question of whether or not there is personality in the object. In other words, does the object show others an aspect of the creator's self? This aspect of the personality-property connection focuses on the expression of the creator's will through the medium of her creation. The creation itself is merely a conduit for the expression of personality. Another type of personality stake may exist, however.
A person may claim property so that others will identify him with the property. In this case, the creator claims his property in order to create (rather than express) a particular persona. This "externalization" accords with Hegel's theory. Hegel argues that recognizing an individual's property rights is an act of recognizing the individual as a person. n231 That same reasoning applies to the externalization connection: if X owns a patent, people will recognize him as a particular person -- the inventor of a unique innovation.
There is a problem, however, with founding intellectual property rights upon such externalization. X can't just say "I want people to identify me with the World Trade Center" and expect this to justify his property claim to [*344] it. The individual must have some internal connection to the claimed property. This connection need not be that the object "expresses" the owner's personality. It may be simply that the owner identifies himself with the object. With inventions, the object may precede the personality stake, but with time the scientist or engineer comes to identify himself with his scientific or technological advances. Doppler became identified with certain principles of sound, Edison with the light bulb and gramophone, Bell with his telephone. The personality inquiry cannot just examine the object. The relationship between object and creator is where personality is visible.
2. Alienation and the Personality Justification
Hegel regards alienation as the final element in the agenda of an individual's relationship to the propertized thing. Viewed as a single act, alienation is equivalent to abandonment: "The reason I can alienate my property is that it is mine only insofar as I put my will into it. Hence I may abandon . . . as a res nullius anything that I have or yield it to the will of another. . . ." n232
There is some intuitive appeal in this view of alienation, especially in a barter-exchange framework. n233 Two people can exchange distinct objects if each thinks her own personality would be better expressed through the object presently owned by the other. Jessica can exchange her comic books for Ken's baseball cards if she has more interest in baseball than in the exploits of Spiderman. Ken will engage in the same transaction if he identifies with superheroes more than with the baseball heroes collecting dust in his closet. Each person increases the actualization of his or her personality.
In a money economy, however, the exchange may lose some of its intuitive appeal. An individual alienates his property for value which he can then invest in things which will increase self-actualization above what it would have been had he continued to own the alienated property. Depending upon the degree of development, however, the individual might not be able to increase self-actualization through future investment. One can no longer be as certain that he will receive a profitable return. A fragile money economy -- subject to inflation and shortages -- threatens the prospect of translating value received into increased self-actualization. A stable economy strengthens the prospect.
The risk of unprofitable investment, however, is not the main problem. Alienation is more than just "giving up" something. Like many of the rights encompassed by property, the right to alienate X is the right partially to determine X's future. In an absolute sense, only the future decisionmaker -- the transferee -- for X is determined, but in practice an act of alienation usually [*345] establishes clear probabilities as to the future of the object itself. This is true whether the alienation conveys land to a developer, sends a horse to a glue factory, or sells weapons to terrorist organizations.
To better understand this, imagine a system of depositing or redepositing objects in a "community bank" for which, upon deposit, one received value coupons. The property, once in the bank, becomes a res nullius, and the bank would dispose of this property on a first-come/first-serve basis, much like the government auctions newly acquired lands or unclaimed postal freight.
The difference between alienation and this community bank is that most alienation involves some degree of determining the object's future. Imagine that Jessica can sell her new baseball card collection to David, an avid collector, or to Nat, the restaurateur who is opening a sports version of the Hard Rock Cafe and is looking for wall decorations. Now Jessica's act of alienation involves the choice of where and how the property will be used in the future.
This is the paradox of alienation under the personality model of property. The present owner maintains ownership because he identifies the property as an expression of his self. Alienation is the denial of this personal link to an object. But if the personal link does not exist -- if the object does not express or manifest part of the individual's personality -- there is no foundation for property rights over the object by which the "owner" may determine the object's future. An owner's present desire to alienate a piece of property is connected to the recognition that the property either is not or soon will not be an expression of himself. Thus, the justification for property is missing. This subtle control of the object's future does not jibe with foreseen future denial of the personality stake.
One way to explain this paradox is to say that the personality justification is powerful for property protection, but that it fails to explain property exchange. Using Radin's terminology, the willingness to sell a piece of property suggests that the property has moved from the "personal" category to the "fungible" category. This follows because personal property is defined as having an internal value for the property owner in excess of possible external value. When a buyer comes forward offering a price acceptable to the owner, there is an external valuation of the property commensurate to the owner's internal valuation and the personality justification for guarding rights to personal property vanishes.
Specific covenants and restrictions on property suffer in the same way. A restriction -- covenant, servitude, or easement -- acknowledges that the present owner has a limited personality interest continuing into the future. Restrictions on real property, such as preservation of particular natural features or prohibitions on particular uses, seem like very honest claims to future [*346] personality stakes in property. By using a restriction, a person retains the specific stick(s) in the bundle of property rights which will "contain" his continuing personality stake.
The restriction turns a present owner's freedom to choose from varying courses of action into a future static condition inherent in the property. A farm owner's right to cut down a woods in the corner of his farm is transformed into a static condition when he sells the farm with a restriction against destroying those trees. This conversion produces a static condition which continues regardless of the evolving wishes of either the original owner or the new owner. This static condition replaces both the original owner's right and the new owner's right. With alienation, the condition becomes subject to the new owner's right. The original owner alienated his property, betting only on the probability that the new owner would not pursue a course of action that offends him.
It is more difficult to defend a personality justification for restrictions than it is for complete alienation. We often use our property rights to alter an object to suit our personality. A restriction destroys the flexibility by which property becomes and continues to be a reflection of those who own it. This flexibility, of course, may not matter to an original owner seeking to preserve memories, but it will matter a great deal to the new owner seeking to maximize his personal expression. Perhaps it is no accident that even more so than covenants disallowed for violating public policy or constitutional provisions, n234 covenants creating affirmative obligations on real property are generally limited n235 and "a general restraint upon alienation is ordinarily invalid." n236 Such a restraint would be ideal for an owner who wishes to alienate and to control the object's future. It would permit him to choose the new owner (whose probable use of the property can be known) and restrict to whom the new owner can alienate.
Alienation of intellectual property can take one of two basic forms. The first is its entire alienation by selling, at one time, all rights to the property. The second is the complete alienation of copies of the property with limitations on how those copies may be used: the selling of copies of copyrighted works, objects displaying trademarks, or licenses to use patented technology. n237
Alienation of the entire intellectual property -- all rights to a trademark, [*347] patent, or copyright -- has the same paradoxical problems as does the alienation of physical objects. If a person genuinely has no personality stake in a work, why should she determine who publishes it, who markets it, or who dramatizes it? If an inventor foresees that an invention will neither manifest his vision of the world nor speak as an expression of his identity, why should he derive economic value from it? As with physical property, on most occasions the complete alienation of intellectual property is an exercise of rights over property in an act that, by its nature, denies the personality stake necessary to justify property rights.
This paradox of personality and alienation is more acute with intellectual property because, in the absence of any physically tangible res (other than the copy, which is not itself the entirety of the property) that is distinct from the creator's personality, it is difficult to conceive of abandonment. If there is no "thing" to abandon, how is alienation possible? Abandonment of an idea is arguably alienation of personality -- a prohibited act in Hegel's system. n238
When I take the rock from my shelf and toss it back onto the Corsican beach, I do so because I no longer identify with the memories the rock evokes and no longer see it as manifesting a part of my life. We go through this same process when we put old knick-knacks in a garage sale or send old clothes to the Salvation Army. The res exists independent of our personality, so it is not incoherent to claim that there is no longer a personality stake in the res.
This abandonment of a personality stake will be incoherent if there is no recognizable res that exists beyond the individual's expression. The question is whether the created work exists independent of the creator: does the expression turn to artifact? Performing artists often war with writers and composers over this issue. Seeking maximum freedom, the performers view the particular play or musical composition they are using as a device for their own expression, a res through which they can express their personalities. Yet the writer or composer may not think the res is abandoned at all.
Playwrights versus actors, composers versus conductors and orchestras -- these two sides will always be locked in one another's arms, in a grip that is both mortal combat and mutual need. It is possible to draw many comparisons and analogies to this issue. There is the familiar comparison to the rights of parents -- the author having a parental stake in her work. A less familiar analogy might be made to the questions of original intent and interpretivism in constitutional jurisprudence.
The "interpreters" believe that intellectual property can be, and usually is, [*348] abandoned. Their vision is reinforced by both popular notions of artistic development and philosophical notions of personal identity. A writer may simply no longer identify with something he previously wrote. A Picasso or a Le Corbusier may change radically the style of his work and, in the end, no longer identify with the works of the abandoned period. David Bowie can move beyond "Ziggy Stardust" n239 and David Stockman can repudiate his doctrine of supply-side economics. n240 Philosophers are familiar with arguments that there is no reason to identify the works written by Jorge Luis Borges in 1956 as a manifestation of the personality of Jorge Luis Borges as of 1986. For Borges in 1986, his earlier works may indeed have seemed liked a res nulli. n241
It's the other one, it's Borges that things happen to. . . . News of Borges reaches me through the mail and I see his name on an academic ballot or in a biographical dictionary. I like hourglasses, maps, eighteenth century topography, the taste of coffee, and Stevenson's prose. The other one shares these preferences with me, but in a vain way that converts them into the attributes of an actor. It would be too much to say our relations are hostile; I live, I allow myself to live, so that Borges may contrive his literature and that literature justifies my existence. I do not mind confessing that he has managed to write some worthwhile pages, but those pages cannot save me, perhaps because the good parts no longer belong to anyone, not even to the other one, but rather to the Spanish language or to tradition. . . . But I must live on in Borges, not in myself -- if indeed I am anyone -- though I recognize myself less in his books than in many others, or than in the laborious strumming of a guitar. Years ago I tried to free myself from him and I passed from lower-middle-class myths to playing games with time and infinity, but these games are Borges' now, and I will have to conceive something else. . . . I do not know which of us two is writing this page.
Hegel seems to have taken a contrary view, considering the complete alienation of intellectual property to be wrong -- morally analogous to slavery or suicide because it is the surrender of a "universal" aspect of the self. n242 Selling an entire piece of intellectual property seems like a lesser surrender of the self, but Hegel considered it too much a "universal" part of the individual to be permitted. He seemed to identify the intellectual object as an ongoing expression of its creator, not as a free, abandonable cultural object. Supporting Hegel's view, we can note that even when the creator thinks he has abandoned the object, he may still identify with it enough to oppose certain uses for it. Even after "abandoning" a visual image, the artist might oppose its use as a symbol by a fringe political or religious organization.
The alienation of copies of the intellectual property offers a different set of [*349] issues. An owner may or may not limit the uses to which the alienated copies may be put. However, in either case the original owner still retains rights over the property. This type of alienation does not fall prey to the paradox of complete alienation: there is no exercise of property rights (alienation) after an "owner" no longer has a personality stake in an object. It also is immune from Hegel's objection to the selling of a part of oneself. Unlike physical property, the owner can, in this way, alienate the intellectual property while keeping the "whole" of the property and himself.
Not only does Hegel's personality theory pose no inherent objection to this kind of alienation of intellectual property, it also provides affirmative justifications. Hegel focuses on one such justification -- concern for the economic well-being of the intellectual property creator. n243
At first blush, this economic rationale seems far removed from the concerns of personality theory, n244 yet it can be recast into the framework of the personality theory. From the Hegelian perspective, payments from intellectual property users to the property creator are acts of recognition. These payments acknowledge the individual's claim over the property, and it is through such acknowledgement that an individual is recognized by others as a person. n245 "Recognition" involves more than lip service. If I say "this forest is your property" and then proceed to flagrantly trespass, cut your timber, and hunt your deer, I have not recognized your property rights. Similarly, verbal recognition of an intellectual property claim is not equal to the recognition implicit in a payment. Purchasers of a copyrighted work or licensees of a patent form a circle of people recognizing the creator as a person.
Furthermore, this generation of income complements the personality theory in as much as income facilitates further expression. When royalties from an invention allow the inventor to buy a grand piano he has always wanted, the transaction helps maximize personality. But this argument tends to be too broad. First, much income is used for basic necessities, leading to the vacuous position that life-sustenance is "personally maximizing" because it allows the personality to continue. Second, this approach could justify property rights for after-the-fact development of personality interests without requiring [*350] such interests in the property at the time the property rights are granted.
The personality theory provides a better, more direct justification for the alienation of intellectual property, especially copies. The alienation of copies is perhaps the most rational way to gain exposure for one's ideas. This is a non-economic, and perhaps higher, form of the idea of recognition: respect, honor, and admiration. Even for starving artists recognition of this sort may be far more valuable than economic rewards.
Two conditions appear essential, however, to this justification of alienation: first, the creator of the work must receive public identification, and, second, the work must receive protection against any changes unintended or unapproved by the creator.VARA Hegel's prohibition of "complete" alienation of intellectual property appears to result from his recognition of the necessity for these two conditions. While he would permit alienation of copies, and even the rights to further reproduction, n246 he disapproves alienation of "those goods, or rather substantive characteristics, which constitute . . . private personality and the universal essence of . . . self-consciousness." n247 Such alienation necessarily occurs if the recognition of the connection between a creator and his expression is destroyed or distorted. When the first condition is violated, this recognition is destroyed; when the second condition is violated, it is distorted.
n167. Radin, Property and Personhood, 34 STAN. L. REV. 957, 957 (1982).
n169. This theory was most thoroughly developed in G. HEGEL, PHILOSOPHY OF RIGHT, supra note 4.
n170. See Kwall, Copyright and the Moral Right: Is an American Marriage Possible?, 38 VAND. L. REV. 1, 5-16 (1985) (urging U.S. to adopt aspects of European copyright law which recognize moral and personal rights of creator in work produced, rather than mere pecuniary interests recognized under U.S. law); Katz, The Doctrine of Moral Rights and American Copyright Law -- A Proposal, 24 S. CAL. L. REV. 375, 391-409 (1951) (proposing that the U.S. incorporate the European concept of moral rights into copyright law); Roeder, The Doctrine of Moral Rights: A Study in the Law of Artists, Authors and Creators, 53 HARV. L. REV. 554, 558-65 (1940) (arguing that the U.S. should adopt European moral rights in copyrighted work, which includes right to publish, or not, in form desired and right to prevent deformation).
n171. Acton, 3 THE ENCYCLOPEDIA OF PHILOSOPHY Hegel, Georg Wilhelm Friedrich 442 (1967 ed.).
n172. G. HEGEL, supra note 4, P41.
Invariably, writings on Hegel devote some attention to the difference between Hegelian "freedom" -- as it appears in the passage above -- and the conception of "freedom" which lies at the root of classical liberalism. However, these disparate conceptions of freedom need not greatly affect the acceptability of Hegel's justification for property.
n175. Berki, Political Freedom and Hegelian Metaphysics, 16 POL. STUD. 365, 376 (1968).
n176. The Philosophy of right is divided into three parts. Part I, "Abstract Right" is concerned with the individual agent as a person in relationships with other persons and things. Parts II and III are concerned with the higher development of the agent as an autonomous moral subject and as a member of the rational community ultimately manifested in the State. G. HEGEL, supra note 4.
n177. A. CAMUS, CALIGULA (1945).
n178. For example, he attacks parents who treat their children as "things." G. HEGEL, supra note 4, P43.
n179. The first principle of Rawls' architectonic system addresses this concern: "Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all." J. RAWLS, supra note 153, at 250; id. at 302.
n180. G. HEGEL, supra note 4, PP47-48.
n181. J. LOCKE, supra note 32, @ 27.
n182. Knowles, Hegel on Property and Personality, PHIL. Q., Jan 1983, at 45, 48.
n183. Acton, supra note 171, at 446.
n184. G. HEGEL, supra note 4, P24.
n185. See, e.g., H. MARCUSE, REASON AND REVOLUTION 192-95 (1960) (property is the first embodiment of freedom and individuality is manifested in property); Ilting, The Structure of Hegel's 'Philosophy of right', in HEGEL'S POLITICAL PHILOSOPHY (Pelczynski ed. 1971).
n186. Knowles, supra note 182, at 52-53.
n187. John Plamenatz has made this point nicely: Plamenatz, History as the Realization of Freedom in HEGEL'S POLITICAL PHILOSOPHY 30, 40-41 (Pelczynski ed. 1971).
n188. G. HEGEL, supra note 4, P51.
n198. Id. P60. Note that this "marking" accords with Hegel's apparent recognition that secure property or capital allows continued personal development.
n199. Radin, supra note 167, at 987.
n200. G. HEGEL, EARLY THEOLOGICAL WRITINGS (T.M. Knox trans. 1977).
n202. Note that this is also different from Marx's classic statement of alienation in which the laborer expends labor on the object he produces but neither identifies with it nor owns it. See K. MARX, ECONOMIC AND PHILOSOPHIC MANUSCRIPTS OF 1844, at 110-11 (B. Struik ed. 1964).
n203. Radin, supra note 199, at 989-91.
n204. G. HEGEL, supra note 4, P49.
n208. Id. P70. The oblique references to slavery and suicide in paragraphs 67 and 70 are made explicit in the Additions, at paragraphs 44 and 45.
n209. Probably because of the technology of his time, Hegel did not consider the possibility of mass production capable of imitating an artist's work. See id. P68 (copy of a work of art contains elements of copyist's skill whereas copy of books are merely mechanical reproductions).
n215. See generally J. HYPPOLITE, STUDIES ON MARX AND HEGEL 82-83 (1969); D. MCLELLAN, THE YOUNG HEGELIANS AND KARL MARX 140-41 (1969); C. TAYLOR, HEGEL AND MODERN SOCIETY 144-45 (1979).
n216. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250 (1903).
n217. "Persona" is a term used when discussing the right of publicity and the right to one's image, name, or likeness. Hengham & Wamsley, The Service Mark Alternative to the Right of Publicity: Estate of Presley v. Russen, 14 PAC. L.J. 181, 182 (1983).
n218. While some politicians and rock stars may work on their public images, the world is full of famous athletes, heroes, and actors who do not labor to create their public images. However, in Memphis Development Foundation v. Factors, 616 F.2d 956, 959 (6th Cir. 1980), the court found that protection of the persona was intended to motivate creativity.
n219. Aspects of the persona have been given property or quasi-property protection in a series of cases throughout the country. See, e.g., Hirsch v. S. C. Johnson & Sons, Inc., 90 Wis.2d 379, 403, 280 N.W.2d 129, 140 (1979) (publicity rights granted over use of nicknames); Price v. World Vision Enter., 455 F. Supp 252, 266 (S.D.N.Y. 1978) (enjoining defendants from using voices and likenesses of Laurel and Hardy), aff'd, 603 F.2d 214 (2d Cir. 1979); see generally Shipley, Publicity Never Dies; It Just Fades Away: The Right of Publicity and Federal Preemption, 66 CORNELL L. REV. 673, 680 (1981) (citing several cases granting publicity rights).
n220. Indeed, it is hard to say whether an author's writing or an author's persona is the better medium for expressing personality. The persona may be more important because it represents a whole character, image, and lifestyle, while an author's written works consist of only specific expressions. On the other hand, a novel may be a more accurate representation of personality for some writers because the work is an intentional expression of the creator, while the persona is the individual's intentional and unintentional actions combined with popular reaction to these actions. Indeed, it is difficult to fit personas into both the labor and personality theories of intellectual property. They are sometimes the result of hard work towards securing a public image based on an internal vision. But quite often they are creations of pure chance, perhaps the only "intellectual property" without intentionality.
n221. The privatization of space satellites, however, raises the spectre of new geographic data being monopolized in the hands of private individuals and released only in copyrighted works.
n222. Arno corrects for Mercator distortions that make the northern hemisphere, i.e. first and second world countries, appear larger in land area than they really are and that make the less developed nations of the southern hemisphere look smaller. See P. ARNO, A NEW MAP OF THE WORLD (1983).
n223. For example, since the 1950s, China has been consistently colored yellow on National Geographic maps. See, e.g., NATIONAL GEOGRAPHIC SOCIETY, ATLAS OF THE WORLD 132-43 (14TH ed. 1975).
n224. Trademark Clarification Act of 1984, Pub. L. No. 98-620, 98 Stat. 3335.
n225. See H.R. REP. NO. 781, 98th Cong., 2d Sess. 9, reprinted in 1984 U.S. CODE CONG. & ADMIN. NEWS 5750, 5758-59 (discussing H.R. 1007, 96th Cong., 1st Sess. (1979)).
n226. We tend to feel that a particular invention, unlike a particular novel, would eventually be created by someone. See generally Marconi Wireless Co. v. United States, 320 U.S. 1, 62 (1943) (assessing importance of individual inspiration to scientific and technological development in light of view that scientific progress is gradual evolutionary process).
n227. Cf. P. DAVIS & R. HERSH, THE MATHEMATICAL EXPERIENCE 298-316 (1981) (chapters "Comparative Aesthetics" and "Nonanalytic Aspects of Mathematics").
n228. Cf. Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1253 (3d Cir. 1983) (dictum) (when idea underlying computer program can be expressed in different ways, choice of expression can be protected by copyright), cert. dismissed, 464 U.S. 1033 (1984).
n229. Refusing to grant property rights over discovered scientific facts may be a fitting example of insufficient personality association limiting property rights over a set of ideas.
n230. See F. W. Woolworth Co. v. Contemporary Arts, Inc., 193 F.2d 162, 164 (1st Cir. 1951) (though variations in manner of sculpting might be appreciated only by a "fancier," such variations are nonetheless a product of "something irreducible" in sculptor).
n231. G. HEGEL, supra note 4, P71.
n233. See generally id. PP72-81.
n234. See Shelley v. Kraemer, 334 U.S. 1, 22-23 (1948) (states violate fourteenth amendment by enforcing racial discrimination clauses in real estate agreements).
n235. See generally Reno, The Enforcement of Equitable Servitudes in Land, 28 VA. L. REV. 951, 972 (1942) (affirmative burdens on purchased land not enforceable in equity).
n236. Dr. Miles Medical Co. v. Park & Sons Co., 220 U.S. 373, 404 (1910).
n237. Licensing arrangements take either of two forms. One approach, common with patents, is to license an individual to use a patented process for her own work. This is directly analogous to alienation of single copies. "Licensing" might also take the form of giving a marketing company all rights to a copyright or patent in exchange for fixed royalties. This would seem more analogous to complete alienation of the res.
n238. G. HEGEL, supra note 4, @ 66.
n239. Compare Bowie, The Rise and Fall of Ziggy Stardust and the Spiders from Mars (RCA 1972) with Bowie, "Heroes" (RCA 1977).
n240. See D. STOCKMAN, THE TRIUMPH OF POLITICS (1987).
n241. Perhaps no writer has stated this more
eloquently than Borges himself:
J.L. BORGES, Borges and I, in LABYRINTHS 246 (J.E. Irvy trans. 1964).
n242. G. HEGEL, supra note 4, PP66-69 (discussing inalienable types of property that constitute one's "own private personality," such as inventor's idea for a machine; comparing alienation of such property to total alienation of personality in slavery).
n243. G. HEGEL, supra note 4, P69 ("the primary means of advancing the sciences and arts is to guarantee scientists and artists against theft and to enable them to benefit from the protection of their property").
n244. A creator concerned only with economic return might allow radical brutal changes in his work if this produced the most profit. Personality considerations, by contrast, cause owners to prohibit change, deletions, or misattributions during any reproduction. Indeed, a creator concerned purely with personality expression might allow free reproduction of his work as long as these restrictions were honored.