Freeculture.org asserts, “A free culture is one where all members are free to participate in its transmission and evolution, without artificial limits on who can participate or in what way.” I argue that this worthwhile goal is inconsistent with the wholesale rejection of intellectual property. While current legal justifications and implementations of intellectual property are antagonistic to free culture, an examination of the general purpose and justification of property—especially drawing from the work of John Locke and F.A. Hayek—reveals that one cannot enjoy a fully free culture without legal protections that permit authors to set the terms for the distribution and reproduction of their works.
To understand why intellectual property is a necessary condition of free culture, one must understand markets as more than merely economic institutions. Despite the explicitly consequentialist justifications usually trotted out for intellectual property, our intuitions about property are not all accounted for in narrowly economic terms, and economic terms are never the end of the story in any case. As Hayek aptly notes, “Economic considerations are merely those by which we reconcile and adjust our different purposes, none of which, in the last resort, are economic.” To get to the bottom of property, we need to investigate the relationship between property and the projects and purposes that constitute our very lives.
These considerations indicate the value of establishing institutions that provide individuals with the incentives and the means to access, process, and respond to information about the best ways to achieve their various ends. In a nutshell, assignment of property rights is necessary for a flourishing market, and a market provides the institutional means for leveraging the massive amounts of implicit, tacit, and distributed information necessary for discovering and living the good life. In this light, the purpose of property rights is for setting up and regulating the market as an information processing system that processes and distributes the information relevant to our ability to “reconcile and adjust our different purposes.”
In light of this, the critique of intellectual property typically errors by only addressing narrowly economic concerns. Against standard utilitarian defenses of intellectual property, it is often pointed out that information artifacts are non-rival goods and their distribution costs have become negligible. For example, since your having a copy of my song in no way diminishes my ability to use that song, and since nowadays there is little or no need to provide incentives to middle-men to distribute or produce the song, there are no overall negative consequences to doing away with the current financial incentives offered by intellectual property. Assuming that artists do not require strong economic incentives to do their best work, providing consumers with the legal right to make unauthorized copies does no harm to the art and no injustice to artists. In the information age, there is no need to create artificial incentives for distributors either. If the incentives of markets ever made sense, the information age has rendered them superfluous or even detrimental. After all, attention to the marketability of a work can negatively impact the work.
However, it is precisely the impact of the market on the work itself that means a fully free culture needs intellectual property. This is obscured in the critique, which narrowly addresses itself to economic incentives, missing the much more important role that markets play in gathering, processing, and distributing information in a readily usable and unequivocal form. In this sense, a market is an information resource for artists and patrons alike. The sort of market created by the assignment of intellectual property rights does a tolerably good job of gathering, processing, and making available usable feedback from an artists’ target audience. While alternative mechanisms may have a role to play, there is an undeniable advantage to a system that requires the would-be critic to “put your money where your mouth is.” Moreover, it should be emphasized that, since the relevant sense of a market is not limited to economic buying and selling of artifacts, but extends to evaluating ways of life through all sorts of distributed institutions for distilling the “wisdom of crowds,” the relevant feedback is by no means crassly or narrowly economic. Whatever market or market-like mechanisms one chooses for feedback, I will show that they can only operate on the assumption of various intellectual property rights—though unpacking those rights also vindicates the need for significant reform.
Surely there will be artists who prefer to eschew any such a feedback device, even while others embrace it, but that is exactly the point. Creators need the freedom to judge for themselves the best mechanisms of evaluation. A Lockean account of intellectual property rights is uniquely suited to defending such freedom, permitting and even encouraging alternatives to economic markets alongside other institutions. If music that is “free as in beer” really is as good or better than music owned and distributed under a reformed intellectual property regime, then we need a market to provide the feedback that proves this. Just as a Lockean account is consistent with advocacy of Open Source software, along with the recognition that some software is better when it is proprietary (a point repeatedly made by Open Source advocate Eric Raymond), so too is a Lockean account consistent with allowing artists maximum flexibility to determine the appropriate feedback and distribution networks for their creations. While intellectual property protections may have restricted artists’ choices in the broadcast age, in the information age it is more restrictive to eliminate such protections for those who desire them. Surely it would be a grave mistake to trade away, in the interests of a “free culture,” the very institutions that facilitate the freedom of artists to create as they see fit and under conditions of their own choosing.