Intellectual Property - Ethics for the Information Age - page 165

Attempting to treat intellectual property the same as ordinary property leads to
certain paradoxes, as Michael Scanlan has observed [10]. We consider two of Scanlan's
scenarios illustrating problems that arise when we extend Locke's natural rights argu-
ment to intellectual property.
SCENARIO A, ACT 1
After a day of rehearsals at the Globe Theatre, William Shakespeare decides to
have supper at a pub across the street. The pub is full of gossip about royal
intrigue in Denmark. After his second pint of beer, Shakespeare is visited by the
muse, and in an astonishing burst of energy, he writes Hamlet in one fell swoop.
If we apply Locke's theory of property to this situation, clearly Shakespeare has the
righttoown Hamlet . He mixed his labor with the raw resources of the English language
and produced a play. Remember, we're not talking about the piece of paper upon which
the words of the play are written. We're talking about the sequence of words comprising
the play. The paper is simply a way of conveying them.
What should Shakespeare get from his ownership of Hamlet? Here are two ideas
(you can probably think of more): He should have the right to decide who will perform
the play. He should have the right to require others who are performing the play to pay
himafee.
So far, so good. But let's hear the end of the story.
SCENARIO A, ACT 2
On the very same night, Ben Jonson, at a pub on the opposite side of London,
hears the same gossip, is struck by the same muse, and writes Hamlet —exactly
the same play!
Ben Jonson has mixed his intellectual labor with the English language to produce
a play. According to Locke's theory of natural rights to property, he ought to own it. Is
it possible for both Ben Jonson and William Shakespeare to own the same play (Figure
4.3)? No, not as we have defined ownership rights. It is impossible for both of them to
have the exclusive right to decide who will perform the play. Both of them cannot have
an exclusive claim to royalties collected when Hamlet is performed. We've uncovered a
paradox: two people labored independently and produced only a single artifact.
We ended up with this paradox because our analogy is imperfect. If two people go
to the same iron mine, dig ore, smelt it, and cast it into belt buckles, there are two belt
buckles, one for each person. Even if the belt buckles look identical, they are distinct,
and we can give each person ownership of one of them. This is not the case with Hamlet .
Even though Jonson and Shakespeare worked independently, there is only one Hamlet :
the sequence of words that constitute the play. Whether we give one person complete
ownership or divide the ownership among the two men, both cannot get full ownership
of the play, which is what they ought to have if the analogy were perfect. Therefore, the
uniqueness of intellectual properties is the first way in which they differ from physical
objects.