Information as public domain. A philosophical argument against intellectual private property

We are accustomed to see political censorship as the main enemy of freedom of information. However, if we intend information in a broad meaning, as code, we realize that even private intellectual property might be regarded as a restraint to a free circulation of information. The advocates of intellectual private property are facing a challenge against the legal devices they recommend to protect it: patents, copyright restrictions, harsh and intrusive anti-piracy laws. On the other hand, the critics of intellectual private property propose to conceive information as a commons: code can be developed to everyone's advantage only in a community free to share and to discuss it. The freedom of such a community, however, is connected to the freedom of its object, that is to say to the publicness and openness of the code. It requires, in other words, a kind of communism of knowledge.

The idea of code as a commons is usually asserted in relation with two specific, technical fields: software and genetic code. The question of intellectual property may appear very specialized, indeed. However, as it concerns the wider subject of freedom of information, it may be useful to see it from the perspective of Western philosophy tradition. In it, communism of knowledge is a marginal opinion, or is it intertwined in the mainstream?

The sociologist Pekka Himanen, in his recent book on hacker ¹ ethic ² , quotes a well-known Theaetetus passage on the independence of theoretical life ³ to show the likeness between hackers' world and Plato's Academy. Such a comparison is not surprising: they both share a peculiar freedom in defining their schedule and organizing their timetable. In the Academy and in the scientific communities based on its model, scientists release their work to the public, so that scientific community can use, test, criticize and improve it. The freedom of the scientific work and of its products is reflected in the freedom of the scientists. Hackers rely on a kind of organized skepticism and of collective development of ideas that may be viewed as a prosecution of Plato's Academy synousìa: they learn by staying together and by teaching others, that is by taking part in a community of knowledge.

The connection between communism of knowledge and mainstream Western philosophy did not appear as obvious, as long as the books used to be the major medium to preserve and transmit information. In fact, as such a medium is a discrete physical object, the information it conveys can be easily seen as a commodity, like the book itself, which is produced and distributed in a specialized way. However, as Pierre Lévy says, the ongoing media revolution undermines the power of traditional distributors, because it makes possible a direct, personal access to information. Such a revolution concerns not only books and newspapers publishing, cinema, television and so on, but the very educational system as well. The teacher's principal role is no longer one of transmitting knowledge, because this task is now more efficiently performed by other means. His competence has to shift towards the incitement to learning and thinking – to animate collective intelligence. ⁴ If information is no longer scarce, but overabundant, the typical questions of theoretical life – how to produce, select, transmit and apply knowledge - are no longer reserved to hackers, researcher or philosophers, because they concern a wider public. Already in 1964, Marshall McLuhan understood it clearly:

The truth of McLuhan's prophecy depends closely on intellectual property regulation. If information, like physical objects, has private proprietors, its accessibility will be submitted to private economy laws and theoretical life will be subjugated, objectively and subjectively, to economy. If knowledge, as commons, cannot have private owners, everyone will be able to collect it and theoretical life will remain virtually open. Authors like Vandana Shiva ⁶ and Lawrence Lessig have recently advocated the freedom of genetic code and of software. In Lessig's opinion, knowledge should remain a non-rivalrous commons, because it is like a public road, whose values is not decreased, but increased by its general accessibility. ⁷ “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation”. ⁸

It is possible to outline arguments for the idea of knowledge as a commons both in Kant's and in Plato's thought. We shall analyze those arguments, to show the continuity of a tradition that is much more respectable and ancient than the claims of intellectual private property.

Kant wrote about copyright in a 1785 assay, Von der Unrechtmäßigkeit des Büchernachdrucks, whose ideas were briefly restated in Metaphysik der Sitten, § 31, section II (1797). Therefore, if Kant did non change his mind since 1785, we may read the 1785 essay together with another 1797 writing, Über ein vermeintes Recht aus Meschenliebe zu lügen, which deals with the question of the proprietary nature of knowledge and of its relation with politics, while replying to the liberal theorist Benjamin Constant.

From Constant's point of view, we should not follow the moral imperative that prescribes us to tell the truth in an unconditioned and abstract way, because society would become impossible. If telling the truth is a duty, a right should be correlated to it; but no one has a right to any truth that harms others. ⁹ This way of thinking presupposes that knowledge can be treated as an object of a patrimonial right. Its owner can grant or deny accessibility to it and civil society exerts a political control to limit the exercise of such a right, to prevent harm to others. In other words: the accessibility of knowledge may be limited either by the will of its owner or by the public law, which has to restrain the right of the owner to prevent injuring other people. Accordingly, perceived dangers like French Revolution Terror, terrorism or, more simply, the perspective of an economic damage for a group with a strong lobbying presence can become proper reasons to justify a restraint to knowledge accessibility, even by means of censorship and disinformation.

Kant does not agree with Constant. First of all, he draws a distinction between two facets of truth: from an objective point of view, truth is a proposition being true or false. From a subjective point of view, on the other hand, truth is a person's truthfulness or sincerity. ¹⁰

If truth in its first meaning were a proprietary thing, the being true or false of a proposition would depend on the will of the owner. ¹¹ But this cannot be the case: even a libertarian legal system, which is is based on an absolute conception of private property, needs that the domain of knowledge and justification of law be immune from individuals' property and arbitrary will.

Truth in its subjective meaning, as truthfulness, does not concern the objects of knowledge, but the individual behaviors that grant or deny their accessibility to others. Lie – like political or economic censorship – works as follows: even if I do accept that objective truth cannot depend on my arbitrary will, I assign myself the right to decide who can access to it. And it is worth noticing that, in Kant's thought, knowledge subjective accessibility and its objective truth are two separate but intertwined facets: the freedom in the public use of reason is important, because knowledge, as such, does not work as a private experience, but as conversation and intersubjectivity. ¹²

In Kant's opinion, no one has ever the right to lie, that is to restrain subjectively the accessibility to knowledge. He justifies his thesis by means of two kinds of reasons, concerning the connection of knowledge and law and the relation between knowledge and world:

Therefore, a proprietary conception applied to knowledge has two major flaws. First, it is impossible to establish a legal system valid for everyone while granting access to information in a discriminating way. Second, it is impossible that finite individuals detain a total control of world and knowledge.

We have articulated Kant's thesis in an intentionally abstract way. However, Kant and Constant do discuss a very concrete question: in Kant's opinion, if a killer were hunting for a friend of ours and the latter were hiding in our home, we should tell the truth even to the slayer, if he asks us where is our friend and we cannot avoid answering. ¹⁶ We cannot assume as an universal principle the permission to restrain the knowledge access whenever we believe that it injures someone, because we would legitimize every kind of censorship and disinformation. In Kant's time, the core question was the tenability of the French Revolution ideals after the Reign of Terror; today, our core question is the freedom of information against the claims in favor of political, administrative and economic control. The example of the friend hunted by a killer belongs to the private sphere, and choosing to lie may appear an obvious line of action. However, if we assumed its principle as universal, it would undermine the very possibility of a common public sphere. We may lie, if we want, to save our friends, but we have to acknowledge that such an action is particular and arbitrary and cannot be adopted in a universal law, without clashing with the publicness that is connected to the very concept of a public law.

If that is true, the restriction to information accessibility has to be evaluated mainly from a political point of view. Kant himself says that the obligation to tell the truth can be applied only with the mediation of the political principle of democratic autonomy: ¹⁷ we can be obliged only by the laws to the constitution of which we took part.

A democracy founded on the principle of citizens' political autonomy can be genuine only if their consensus is informed and aware. If information accessibility is restricted, for whatever reason, citizens would not share the political power, but would be manipulated, because they would not have any longer the opportunity to produce a well-informed consensus. A democracy that abridges the freedom of information or consents to its limitation for economic reasons, is not a genuine democracy. Media concentrations, administrative restrictions to free speech and the economic censorship connected to patents and copyright extension are not forgettable social and bureaucratic incidents, but obstacles to democracy. This is the substance of the so-called Kantian formalism.

Kant's 1785 essay, Von der Unrechtmäßigkeit des Büchernachdrucks, sketches more clearly the thesis that knowledge is incomparable to physical objects and not proprietary. Kant draws a distinction between the book as a physical object and the thoughts it conveys. The book as a physical object becomes a property of whoever buys it. For this reason, it is not fair to restrain the ways in which its legitimate purchaser may use it, without his consent. Therefore, if we intend a book as a physical object, we must admit that its buyer may copy it. On the other hand, the thoughts that are published in a books remain a property of their author, regardless of their reproduction, because they are not physical resources: I can continue to conceive my ideas even if they are indefinitely reproduced. ¹⁸ The question of property makes sense only in the case of physical objects, because they cannot be owned and used by everyone at the same time. On the contrary, ideas can be reproduced and thought by everyone, without depriving their authors. Even the question of the actual paternity of an idea does not properly concern property, but historical truth. Properly speaking, the plagiarist that uses another person's ideas as they were his own, is not a thief, but a liar. Again, "he who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."

Knowledge is not a physical object exposed to a rivalrous use; for this reason it is senseless to submit it to private property and to forbid the reproduction of ideas. On the other hand, from Kant's point of view, it is equally senseless to forbid the reproduction of any physical object, if it has been purchased in a legal transaction and the purchaser copies it by his own means. Therefore, if we conceive intellectual property as a right on physical objects (jus reale or real right), any reservation of copyright in untenable.

Kant tries to experiment the perspective of personal rights: a book is not only a physical object, but it is also the medium through which an author can transmit his speech to the public. This medium is provided by a publisher. For this reason, we can say that the publisher speaks in the name of another. But someone may speak in the name of another person only if he has the latter's authorization. And the authorized publisher ought to be only one, Kant asserts, because a further reproduction would be useless and would spoil the business of both. ¹⁹ The mandate of the author to the publisher is only a personal relationship that does not imply the acquisition of proprietary rights on the text. Furthermore, the goal of this personal relationship is conveying a speech to the public in its indefinite wideness. The author speaks to a public, and the public has a right to his speech regardless to the publisher, whose rights are justified only as long as he provides a medium to reach the public. Consequently, the editor may neither refuse to publish - or to hand over to another publisher, if he does not want to do it himself - a text of a dead author, nor release mutilated or spurious works, nor print only a limited impression that does not meet the demand. ²⁰

Kant does not recognize works of art as speeches. He calls works of art Werke or opera, i.e. things that are produced, while indicating books as Handlungen or operae, i.e. actions. If the works of art are simply physical objects, we can derive from Kant's assumption that every legitimate purchaser may reproduce them and pass his copies to others. ²¹

Kant backs the restriction of the freedom to reproduce a text only in connection with the author as a living person and with his action towards the public. When the author disappears, the public interest for a free circulation of information prevails. And every time a creative work is treated as a proprietary thing, Kant does not see legal hindrances to the freedom of its legitimate owner to reproduce it. He would endorse as legitimate even the so-called piracy, that is to say the reproduction of music, songs, images and films to gift or to sell them to others. Furthermore, Kant would justify even texts reproduction for a personal use: the problem with unauthorized printing is only the circumstance that the printer speaks to the public without s mandate from the author. But if I reproduce a text only to read or to study it by myself, I do not speak to a public in the name of its author.

Kant's position does not rely on pure reason only, but involves a perhaps intentional empirical contamination. In the essay of 1785, the ground for the the exclusive nature of the mandate to a publisher is only the interest of the latter to avoid competition. ²² In the later, and more theoretical, Metaphysik der Sitten, Kant does not mention the question at all. In Kant's world the press used to be medium that provided for the widest distribution of ideas. Printing requires both specific tools and skills, and specialized and centralized organizations. And as long as the publisher of printed texts provides the only medium to convey speeches to a wide public, we cannot avoid to bow to his interest. But the primacy of the publisher's interest is not based on reason, but only on technology. If there is a medium that makes it possible to authors to communicate directly with the public, without relying on publishers, respecting their interests would become senseless. Such a medium, today, is the Internet.

When Kant draws a distinction between the work of art and the book and recognizes only to the latter the quality of a speech, he repeats an ancient, Platonic distinction. The work of art can be treated as a thing and copied because it is not a logos, and cannot talk with the public in a dialogue. For this reason, we can separate if from its author's personality. However - as Kant himself says - even a printed book is a separate and closed physical object. It contains certainly a speech - a tentative dialogue with the public, in Kant's views -; but the speech is restricted by the limitations of the medium it has to use to spread. For this reason, it is easy to confuse books and speeches and to treat both as proprietary physical objects. A different medium, like the Internet, could help us to avoid such a confusion and to set eventually information free from a proprietary conception of copyright.

Immanuel Kant is often considered as a modern Platonist. In fact, he shares with Plato a non-proprietary conception of knowledge. It is not possible to present here a comprehensive perspective on Plato. ²³ However, we can analyze a single example: the well-known argument of recollection, from the dialogue Meno:

Meno, a young Thessalian aristocrat who studied with the Sophist Gorgias, has been put in difficulty by Socrates. At the beginning of the dialogue, Meno had proposed him a question that was widely discussed in Athens philosophical circles: how is virtue (areté) acquired, or more specifically, can virtue be taught? Socrates tried to explain him that, before answering such a question, we have to solve a preliminary problem: how do we define aretè? Meno does not succeed in solving the problem, either because he presents a list of areté instances without caring about which common property makes them instances of the same term, or because he is inclined to take for granted the term he has to define and produces circular reasonings. ²⁴ At first, Meno believed to master his logos; after speaking with Socrates, he feels himself benumbed just like he had touched a torpedo sea-fish. Socrates says him: “For it is not from my being sure (éuporos) that I cause others to doubt (aporéin): it is from being in more doubt (aporòn) than anyone else that I cause doubt (aporéin) in others” (Meno, 80c-d)

The Greek verb aporéin, beyond its philosophical meaning – to be in doubt or puzzled -, has also an economic meaning: to be without resource or to be poor. A little before, Socrates had refuted a tentative definition of areté in which terms like poros, aporia, porìzesthai (to procure) occurred, because it took the definiendum for granted: areté, Meno said at first, is the ability to procure goods. However, he had admitted later that an unjust acquisition is not areté: therefore, Socrates concluded, poros is no more a virtue than aporia (deprivation). (Meno, 76c-e) The question is to explain what we mean with justice, if justice is a part of areté.

Refutation, thus, is an experience of deprivation, at least from the perspective of a proprietary conception of knowledge: we believed to have a tenable notion and, after an élenchos, we remain without anything. Meno tries to escape from his perplexities by asking a question that comes from his sophistic education:

Such a paradox cannot be overcome, if we endorse a proprietary conception of knowledge: notions are entities that are distinct, separate and independent from each other. We can own or not own them. If we do not own them, it is impossible for us to look for them, because our mind is empty, as it were, and clueless.

Socrates summons one of Meno's slave boys and leads him, by questioning, from a wrong answer to the right solution of a geometry problem. Among Meno characters, the slave boy is the only one who has learned something. Socrates, however, taught him nothing, if we intend teaching in a sophistic, proprietary meaning, because he did not give him any notion.

To show how it is possible to learn and to search, Socrates brings out an extraordinary tale: for the human beings learning is recollection or anàmnesis, that is to say a recalling to their minds already known notions, to become able to argue and to retain them in memory. Since we do search and learn things we did not experienced during our individual lives, the knowing part of ourselves, the soul or psyché, has to be immortal and independent from the human shape in which it is wrapped at the moment.

The Marxist thinker Ernst Bloch deprecated anàmnesis as a methodical expression of unfriendliness towards future. As ideas are viewed as residing in a timeless eternity, they cannot evolve: thus they are reduced to an objectified and commodified factum. ²⁵ We saw, however, that Meno's paradox – the impossibility to search for something we do not know – works only with the presupposition of a proprietary conception of knowledge. But anàmnesis implies the opposite: research and learning can work – and avoid Meno's paradox – only if it is assumed a previous continuum of a common, contextual and interconnected knowledge. I may vindicate no idea as “mine”. Meno himself can discuss on areté, even if he is not able to define it, only because he shares such a continuum. As I discover or learn something, it is certainly new for me, in my finite and individual history, but I may not affirm that my notion is absolutely new and “mine” in the sense that I created it ex nihilo. For I do not learn anything from nothing: I can learn only if I share a previous common knowledge and I corroborate my ideas in a community of discussion. Knowledge cannot be privatized without paradoxes, because its conditions cannot be individualistic. ²⁶

Therefore, knowledge cannot justify itself as the peculiar expression of an individual, or of social class, of a group, a race or a culture, without reducing itself to a simple manifestation of taste. Ideas have to be valid for everyone, and all those who are able to search and to learn must be allowed to enter the realm of ideas, regardless of their social condition. Meno's slave boy has the right to be citizen in the world of knowledge. And, as Socrates identifies virtue and knowledge, the doctrine of anàmnesis implies a virtual criticism to slavery and a potentiality for emancipation.

In conclusion, the scrutiny of Kant and Plato's ideas on the social nature of knowledge suggests two possible positions:

This essay tried to show that the latter position is sounder than the former. Anyway, even if the former were preferred, the proprietary paradigm would not consistently be able to forbid the reproduction and the distribution of informational entities. On the other hand, if we endorse the latter position, we have to admit that the following passage of Richard Stallman is no unusual eccentricity, but it is approved by the mainstream tradition of Western philosophy and science. It is unusual and eccentric, instead, the proprietary conception that Stallman criticizes.