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Intellectual property is a broad and ill-defined notion so I want to be clear what I am talking about. I am not talking about someone taking credit for another's published work, surely authors should get credit. I am not talking about patenting designs of physical objects with immediate commercial use. I am talking about the ownership of abstract information that appears to take place in the arts and sciences. The notion that someone can own information and legally control its use and expression is absurd to me.

Example: Walt Disney creates a drawing of "Mickey Mouse" and makes a cartoon of him on film. He controls the mediums in which the information that is "Mickey Mouse" is now stored. He chooses to release these mediums for public view. I view these mediums. The information that is "Mickey Mouse" is now in my psyche. I can choose to paint a painting of information from my psyche that happens to be a derivative of "Mickey Mouse". Under current laws around the world there could be legal repercussions for this. So Disney has partial legal claim to a medium in my immediate possession. Disney also has a legal claim to any such medium that may exist involving " Mickey Mouse" and therefore has legal claim over part of the expression of my psyche.

Almost all cases I can think of involving ownership of abstract information require seizing power from individuals over their immediate reality for enforcement. This is oppression.

What do philosophers have to say about such matters?

What schools of thought are there involving "intellectual property"?

Are there any sound ethical arguments behind these types of laws?

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  • The law may well not be consistent or moral -- they are after all written and interpreted by (fallible) legislators and jurists... Is there any chance you could unpack this a little further, maybe indicate what specifically is the philosophical concern (rather than legal)? – Joseph Weissman Feb 10 '17 at 15:30
  • I guess I am asking under the assumption that most laws are thought about and justified in a philosophical way. I am hoping there is an ethical counterargument to mine, but perhaps there is none. In which case this question would be better posed in the legal SE. – Jared T Feb 10 '17 at 15:35
  • Edited for more relevance. I posted here because I'm interested in the philosophy behind such matters. – Jared T Feb 10 '17 at 15:46
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    Most laws are neither thought about nor justified philosophically, they are a product of political compromises, and this one is a typical example. But Disney does not have legal claims to a medium in your psyche, the law only requires that you do not materialize said medium publicly, and even some of that you can do under "fair use" clauses, like criticism, "transformative" art, etc. This is under copyright, abstract ideas as such are not patentable in the US under the Supreme Court rulings (although there is controversy about what counts as "abstract idea"). – Conifold Feb 10 '17 at 20:54
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There is a lot of radical criticism of “intellectual property” which makes arguments similar to your thoughts. Take a look at

  • No Law by David Lange & H. Jefferson Powell

  • Against Intellectual Monopoly by Michele Boldrin & David K. Levine

Copyright of fictional characters, which is what your example is about, is probably the most ill-justified aspect of copyright law. We're not talking about publishing verbatim copies of others' works (or using verbatim fragments of those) without permission, but about a partial prohibition of publishing your own creative works just because they were inspired by others.

Not all laws are just. The applicability of copyright to fictional characters or fictional universes (Tolkien’s Middle Earth, the Star Wars universe, ...) is one of the best candidates for an inconsistent and unjust legislation which is enacted in most modern democracies. It is an arbitrary restriction of free expression.

I guess there just isn't any opposition because we've gotten so used to it and aside from fan-fiction writers we see it as an industry regulation irrelevant to ordinary citizens.

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The ethical arguments in favour of intellectual property are relatively straightforward. The most compelling in the modern world is the Utilitarian argument that if the owners of ideas (artistic or otherwise) were not assured of a greater reward for the public release of these ideas than those simply copying them, then they would be less likely to release these ideas to the public and society would therefore be the poorer for it. This, of course, presumes that the creators of ideas are motivated only by the rewards that intellectual property protection can provide and not alternative rewards such as notoriety, self-satisfaction or simply knowing that one has improved ones society. The growth of open-source software, for example, demonstrates that these motives are extant.

There are also arguments (after Locke) that because ones own body and mind have been invested in the creation of the idea, that idea must carry some of ones rights over ones own body and mind. This though is not a position that can be concluded, but rather one which is either believed in or not. Courts essentially establish ways of guaranteeing a outcome of certain social contracts in order to facilitate their continued use. I should imagine, therefore that they would be using the utilitarian argument rather than the Lockean one that preserving intellectual property right facilitates the sorts of transactions that society considers useful.

Interestingly, the Utilitarian argument only really works presuming that the rest of society are not ethically utilitarian, otherwise they would all come to the conclusion that society as a whole would progress faster with the free sharing of ideas an innovation than it would without and so share their ideas freely.

The idea here is that intellectual ownership of ideas will generally hamper progress as only large improvements to an idea (large enough to qualify as a new idea) have any incentive of any sort to be put into the public domain. Very rarely, however, are these sorts of improvement the type that can readily be found. This is the main reason why ideas in science are not "owned", so that tiny improvements can readily be made without intellectual property infringement. The same cannot be said for, to use your example, a slightly more aesthetically pleasing version of Mickey Mouse you might have produced which could potentially provide more entertainment to children than the original but which never will because being too close to it could never be published. A similar state exists with philosophical ideas such as these. To take the example above, someone is much less likely to want to produce a very slight improvement on , say Locke's theories of property, than they are to develop an entirely new theory because they will receive a lower reward for doing so, yet this does not necessarily reflect the relative benefits to society of each case. It could be argued that if ideas were more freely exchanged without the need to shackle them to the original owners in some way, small improvements on existing ideas would be valued no less than completely new ones and so each would be free to be judged on their merits to society alone.

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