Rita Risser. The Monist. Volume 93, Issue 3, July 2010.
I. Introduction
In “Quotation and Originality” (Emerson c.1840) Ralph Waldo Emerson reflects on the relation between quotation and original thinking in the creation of cultural products. As Emerson sees it, the creative act and its products are the outcome of both influences and interpretation, of what is given and what is done with what is given. He opens his essay with an insect-kingdom perspective on human civilization. Just as aphids or gnats go about their activities in the natural world, consuming fruit and such, so too humans go about their activities in the civilized world, where they busy themselves consuming artworks and books and other products of culture. Further, just as aphids mate and die and make their organic contribution to the natural world, similarly, humans quote and interpret works, and thereby make their contribution to the civilized world.
However, Emerson continues, to quote blindly and merely create copies of extant works is a barren undertaking. Nothing new comes about. Hence, one must quote in such a way as to bring about, as far as possible, new and original works. To do so requires more than parroting others, it further requires that one quote ‘nobly’ as an expression of one’s own particular genius. By genius, Emerson means a unique mind or self, not a special talent that only some possess. As a unique individual, then, consumes and assimilates the art and knowledge of the past, quoting it in her own way, new and original creation is the outcome.
There is a Romantic streak in Emerson’s writing. He places a high value on genius and the self, especially on self-reliance. He also shares the Romantic idea that culture is organic and historical, which can be traced to Hegel’s view that culture is a systematic and self-revelatory progression (Hegel 1832-45). With Emerson, however, cultural progression is interpreted more naturalistically, as an evolutionary process, aimed at simply enriching human life. If nothing new comes about, culture is static and without vitality. Individuals, therefore, must make their contributions to culture ‘their own’ in order to generate the novelty required for culture to evolve, and for their lives to be enriched by culture.
Despite the Romantic side to his writing, Emerson was influenced by contemporary work in the natural sciences, in particular by the work of Charles Darwin, and he was a forerunner of contemporary thinkers, such as Daniel Dennett, who align culture with the natural sciences, and draw on Darwinian evolutionary theory in explaining culture. Like Emerson, Dennett is interested in placing culture within the natural order and explaining it in scientific, especially Darwinian, terms. Nevertheless, Dennett’s interpretation is far more reductive than Emerson’s. So much so that it brings into question the meaning and possibility of ‘quoting in one’s own way’ and thereby raises questions about our claims to our creative works.
II. Universal Darwinism
Dennett argues that the necessary and sufficient conditions for Darwinian evolution can be stated in a simple algorithm: copy information with variation and selection, and evolution must occur. Dennett then applies this algorithm to culture. Wherever cultural information is copied (or, as Emerson would put it, quoted) with variation and selection, cultural evolution will follow.
Memes
Dennett refers to the units of cultural information that may be copied in this way as ‘memes’. The term comes from Richard Dawkins who coined it as a cultural analogue to the gene (Dawkins 1989, ch. 11). In The Selfish Gene, Dawkins argues that all life evolves by the simple process of some ‘replicators’ out-replicating others. The principle replicator in the biological world is the gene. Hence all biological life evolves by a process of some genes out-replicating others, which occurs in the interest of the replicators themselves and not in the interest of the vehicle or host of the replicators—hence they are ‘selfish’. For example, the evolution of human life does not proceed in the interest of the species or the individual, rather it proceeds in the interest of the genes. A human being is simply the material that protects the genes inside it and facilitates their replication. Near the end of The Selfish Gene, Dawkins hypothesizes that just as the gene is the replicator that drives evolution in the world of biology, the meme is the replicator that drives evolution in the world of culture. Like the gene, the meme is a particulate, but it is a particulate (or unit) of culture, such as a song, a style, or even a concept, that competes for replication within a culture and drives its evolution.
While Dawkins sketches the idea of a meme in The Selfish Gene, its precise nature and operation is not fully worked out. It is at most presented as an analogue to the gene (in the way, for example, that aesthetic taste has been put forward as an analogue to gustatory taste). Other scholars, however, especially those with some interest in the science of culture, have found the notion of a meme promising, and have attempted more rigorous theories of memes to explain culture and cultural evolution. Nevertheless, while these theories are more ambitious than Dawkins’s, there remains strong disagreement about what, in the end, a meme amounts to, or if it is necessary at all to explain culture and cultural evolution.
Eliminativism
Dennett recognizes that memetics is not an established science. However, he finds memes to be a useful heuristic to advance his naturalistic views on culture. Memetics is a useful tool for placing culture within the natural order and trying to explain it in scientific terms. It provides a model for how this may be, specifically, as a Darwinian evolutionary system. He also finds that memetics fits nicely with his eliminativist views on mind, which must also be placed within the natural order and explained in scientific terms. Memetics provides a model: the self need be nothing more than a particular meme history.
But, memes, like genes, are selfish, and this has repercussions for the self qua meme history. Memes replicate for the sake of their replication, not for the benefit of the host. If a meme replicates effectively it will survive and propagate irrespective of how that meme impacts on the host. In fact, meme replication may actually be detrimental to a host; thus a meme such as foot-binding may nevertheless thrive if it is catchy enough. Of course, memes depend upon a host to flourish. Therefore, their impact on their hosts will make a difference to their own flourishing. But, once a suitable host for meme replication is established, the replicator will take hold, and its flourishing will not necessarily coincide with the flourishing of the host. Memes flourish for their own sake, and they offer an elegant (but perhaps not the only) explanation for the appearance of cultural artefacts and practices that are disadvantageous for the species or individual.
This selfishness of memes is troubling to some. As Dennett puts it, memes seem to rob us of our importance as creators; for example, “[a] scholar is just a library’s way of making another library.” But if so, then, “[w]ho is in charge, according to this vision—we or our memes?” (Dennett 1990, 128). Dennett thinks that the real problem here, is to mistakenly postulate a transcendent self that is then manipulated by memes. Rather, we just are our memes. Hence, if our memes are ‘in charge’, then so are we. Still, in what sense are even our memes in charge?
All that is required to explain the world of nature, including culture, according to Dennett, is the Darwinian algorithm. Following it, design (or what we identify as design) will occur out of chaos, unplanned, without the aid of mind or a designer (Dennett 1995, 50). If the conditions for Universal Darwinism are in place, then, design will occur, seemingly out of nowhere. It is the mechanism of evolution itself that explains creation in the civilized world, not us, or even our memes as such.
Evolution, then, is a mindless but an inherently creative process. Humans, of course, are elements within this creative process. But is their role in this process such that they can either individually or collectively claim ownership of their creativity and its products? To parse the question in Emerson’s terms, while humans may in some sense make their creations their own, simply by being a proximate but ultimately unwitting cause of their creations, do they therefore also have some claim to own these creations?
Determinism and property
Generally it is felt that in order for an individual to justifiably claim a work as her own, it must be ‘deeply attributable’ to her: the individual must be more than the accidental cause of the work, she must be responsible for it and merit praise or criticism for the work. Many who consider the question of determinism and human action argue that an individual must have some control over her actions in order to be justifiably praised or blamed in this way. However, there is disagreement about whether or not, given causal determinism, an individual can have the right kind of control over her actions so as to justify praise or blame. Some argue that an individual must be the ultimate originator of her actions and works in order to justify praise or blame. She must, as Galen Strawson puts it, be the “ultimate, buck-stopping originator” of her actions for her to be “truly deserving of praise or blame” (Strawson 1986, 26). But it is hard to see how this can obtain if causal determinism is true. There will always be some cause, some prior event, outside the individual that is an external source for her actions. For example, an individual does not decide to bring herself into existence, with all her peculiarities and tastes. This has been determined for her. If she is not the ultimate originator of her actions, then how can she be said to have control over them, and therefore justifiably praised or blamed for these actions?
If Dennett and others are correct, then ultimate, perhaps even appreciable, control is lacking in the creation of cultural works. If, therefore, individuals are not the ultimate originators of their creative works, but are merely their accidental and proximate cause, then, in what sense may an individual be praised or blamed for these works? And without a basis for praise or blame, then on what basis does an individual claim ownership for a creative work?
Let me set aside, for the moment, the broader question of determinism and the ownership of creative works, and turn to the specific case of intellectual property and copyright. It might be thought that because individuals are not the ultimate originators of their creative works, the claim to intellectual property is undermined. However, as I shall argue, copyright, i.e., our claims over our creative works, is a normative construct; and, as such it circumvents some of the metaphysical questions just raised. After a closer look at intellectual property, I return in the final section of the paper to the broader metaphysical question of determinism and our claim to creative works. There, I attempt to show just how the normative model circumvents some of the metaphysical questions of determinism and human action, both creative and moral.
III. Intellectual Property
Intellectual property refers to works that are the product of an individual’s creative labor. It is generally held that individuals have a natural fight to their intellectual property. Copyright is the distinctive right or bundle of rights associated with this property. Typically, copyright includes the exclusive right to exhibit a work, to make and distribute reproductions of the work, as well as to control whether and how others may use a work.
Copyright does not extend to all of an individual’s intellectual property. Copyright does not protect creative ideas, only the manifest expression of ideas such as stories or pictures. While both ideas and expressions count as products of intellectual labor, only certain of those products, namely expressions, are copyrightable. In what follows I shall clarify this distinction and build a picture of ‘normative proprietorship’.
Originality
In copyright law (in the Anglo-American tradition), an individual only has a right to her original works. An original work simply means a work that originated with, in the sense that it can be traced to and identified with, the individual in question, and that it has not been copied from another. For this reason, ‘original’ in copyright does not mean ‘novel’. Nor does ‘copy’ mean ‘exact likeness’. Two works can be qualitatively identical, but this does not mean that one was copied from the other. In Jorge Luis Borges’s short story, “Pierre Menard, Author of Don Quixote” (Borges 1962), the fictional author Pierre Menard writes a story circa 1934 that is word-for-word identical to a story written circa 1615 by Cervantes. As Borges imagines it, Menard has no knowledge of Cervantes’s Don Quixote. Hence, although these two works are qualitatively identical, one is not a copying of the other. (Indeed, Borges doubts that these works are even strictly identical. Menard’s Quixote, written in the twentieth century is therefore a work that draws on historical themes, whereas Cervantes’s Quixote is a contemporary work.) Menard does not potentially infringe on copyright because he is not familiar with Cervantes’s Don Quixote, and is not copying it.
This reasoning is reflected in modern copyright law, which requires the plaintiff in cases of copyright infringement to show that the defendant was familiar with the original work, and that there is ground for thinking that the defendant actually copied the original work. The plaintiff does not have a right that no other expressions may look like her own, she only has the right that others may not make unauthorized copies of her expressions.
Another point to note is that copyright concerns not the work as such but the rights and duties that individuals who create works (henceforth authors) have toward each other, namely the right that an author has to her original works, and the correlative duty of others not to copy these works. Whereas intellectual property is defined in terms of a relationship between the author and her labor, copyright is defined in terms of a relation between the author and other authors. Whereas intellectual property, then, is a subjectively shaped product, copyright is an intersubjective arrangement.
Ideas
If an author’s intellectual property is a right over works that originate with her, then it might be thought that ideas are not copyrightable because they do not originate in an author. If Dennett and others are correct, creative ideas do not come into existence ex nihilo in an author’s mind. Ideas originate outside the author, and the author herself does not determine whether and how they take hold in her mind. However, thought and action are equally determined, hence, if determinism is a problem for the copyright of ideas, then it is also problem for the copyright of expressions. Yet, we acknowledge a right to expressions. Therefore, determinism itself does not explain why ideas are not copyrightable when expressions are.
Alternatively, it might be thought that ideas are not copyrightable because they are immaterial and therefore impossible to copy. In which case, copyright is redundant. There is no need to protect ideas with copyright because others cannot make unauthorized copies of them to begin with. However, even if ideas are notional and difficult to delineate, most ideas can be perceived as distinct, and as such they can be communicated and copied in the sense of reiterated in the thought of others. If ideas are not copyrightable, it is not because they cannot be copied.
The reason why ideas are not copyrightable does not have to do with their intrinsic nature, e.g., with their alleged lack of originality, or their inimitability, or the fact that they are not manifestly creative works, and so forth. Rather, it is because a public domain of freely-available ideas is required in order for there to be manifest creative works at all. Ideas are the general concepts and schemata from which specific expressions are forged. They are the material, then, for expressions (as Emerson argued). Hence ideas are not copyrightable as this would undermine the very possibility of those works being created, specifically expressions, that can be copyrighted.
It would not be fair, then, to copyright ideas, as this would effectively deny others a right to their expressions. Abraham Drassinower elaborates how (Drassinower 2003). He notes that rights, by nature, have an egalitarian structure. An individual’s right to her intellectual property is legally cognizable only to the extent that others also have a right to their property. Therefore, it is not reasonable for an individual to claim a fight to her ideas, because, if free access to ideas is required in order to author expressions at all, then her claim would effectively be that she, but not others, has a right to authorship and her expressions. It would be difficult to convince others of this argument. Hence, any claim to copyright brings with it, as a matter of equality, a concession to the public domain.
As Drassinower puts it:
The public domain is not only a space containing freely available materials, it is also a fundamental condition of free and equal interaction between persons in their capacity as authors. The public domain is the domain of fair interaction (Drassinower 2003, 10).
A normative model
The central point that I wish to take from this account of intellectual property and copyright is that proprietorship is a normative affair. Intellectual property, as a kind of product, is a more metaphysically fraught concept, defined as it is in terms of a relationship between an author and her labor, which gives rise to questions of origination and the right kind of control over its production; however, copyright—and proprietorship—-is foremost a normative concept, specified as a matter of intersubjective fairness.
A normative, in particular a fights-based, model of proprietorship avoids some of the concerns that determinism poses for our claims to creative works. In particular, on a normative model, for proprietorship to be justified, intellectual property does not have to be the product of ultimate control. The work must originate with the author in what I have termed a proximate sense, but it does not have to be impossibly original.
IV. Determinism, the Individual, and Proprietorship
Metaphysics
Let me begin by sketching the general problem of determinism and human action, to which there are broadly two approaches: the metaphysical and the normative. The metaphysical approach asks a question about the nature of human action, namely, whether it is ‘free’. This question is of consequence because freedom is thought to be required for responsibility for actions. Responses to this question may be either: incompatibilist—if determinism is true then humans are not free; or compatibilist—even if determinism is true, humans are still in some sense free. The normative approach sets aside the metaphysical question of whether or not humans are free, and asks instead when is it fair to assign praise and blame to individuals for their actions.
I will not rehearse all the metaphysical arguments on free will. My interest is in the normative approach. Suffice it to say that the incompatibilist/compatibilist division comes down to a debate about whether or not individuals have the right kind of control over their actions for praise and blame. Incompatibilists think that an individual must have ultimate control, but, given determinism, this is not possible. Compatibilists are content with appreciable control. It is enough for an individual to have some, albeit not ultimate, control over her actions for praise and blame.
Many compatibilists equate appreciable control with the exercise of reason. While classical compatibilists equated freedom with having choices, most contemporary compatibilists argue that an individual must be the source of her own freedom. The exercise of reason is a good candidate for explaining how this might be. Reasoning can be differentiated from obviously determined events, such as bodily happenings, thereby providing a distinctive ground for responsibility; also, it seems to provide for some degree of control over actions, at least guidance control; and finally, it stems from the individual herself. Dennett, for example, (perhaps somewhat unexpectedly, a compatibilist) thinks of control as an individual’s ability to guide her actions on the basis of rational considerations. Humans often self-monitor, rationally evaluate, and then adjust their actions accordingly. Control, then, is simply a matter of ‘responsiveness to reasoning’. Dennett links this sort of control to naturalistic and evolutionary processes. However, the fact that there are other determining sources for the activities of reason, such as the activities and evolution of the human brain, does not disqualify reason as a basis for explaining moral responsibility and creativity. John M. Fischer and Mark Ravizza develop a similar view and call this sort of non-ultimate but meaningful control, ‘guidance control’ (Fischer and Ravizza, 1998).
Incompatibilists are not convinced. For one thing, compulsives and addicts are responsive to reasoning, but not even a compatibilist would think such an individual free. Perhaps, then, the compatibilist has in mind a special, unfettered responsiveness to reasoning as constitutive of freedom. But, the incompatibilist will object, all responsiveness to reasoning is to some degree fettered. As Derk Pereboom argues (2001), there is no special, unfettered responsiveness to reasoning, suggesting instead that individuals are always in some way manipulated, whether by psychological compulsions, by addictions, or by other forces unbeknownst to them. Furthermore, both extraordinary manipulation and the ordinary causal determinism that we are all subject to, are responsibilityundermining. Hence, Pereboom concludes, we do not have the sort of free will required for responsibility.
Normativity
Normativists are not strictly concerned with whether or not humans are free. There exists a diverse range of normativist views, however the common thread is an assumption that a lack of free will is not a threat to the various normative practices of assigning praise and blame.
As Gary Watson has put it, whereas the metaphysician is essentially concerned with the ‘deep attributability’ of human action—with when an individual’s actions are truly her own; the normativist is concerned with the practical ‘accountability’ of human actions—with when an individual is fairly praised or blamed for her actions. Of course, both the metaphysician and the normativist are concerned with the fair assignment of praise and blame. However, the metaphysician will submit that the fair assignment of praise and blame depends upon whether or not a given action is carried out freely. The normativist is open to looking at other bases for the fair assignment of, if not praise and blame, then at least accountability for actions. Given the strong case for determinism, as well, I would argue, given the indecisive metaphysical arguments for human freedom qua control, such openness is worth cultivating.
A rights-based approach
Generally speaking, then, the normativist is interested in the reasonability of given normative practices. One such practice is copyright. As the discussion on intellectual property and copyright revealed, the reasonability and fairness of copyright is not dependant upon the subjective conditions of origination and control that the individual has (or not) with regard to her creative works. Some may be tempted to argue here that the subjective relationship between the individual and her creative works grounds the intersubjective relationship—just as the metaphysician argues that freedom grounds moral responsibility. But the rights-based view need not be grounded in this way. It is resolutely focused on the intersubjective practice of rights.
It must be said, however, that while the rights-based view is not primarily concerned with the individual’s subjective control over her creative work, it is nevertheless concerned with the individual, in particular with the individual’s rights and autonomy. ‘Autonomy’, here, simply means ‘selfgovernment’, and need not be equated with subjective control or freedom. It is possible, for example, for an individual to be autonomous, in the sense of being a discrete and sovereign entity, and yet to fail to control or guide herself. Although some do take an internalist approach to autonomy, developing it in terms of the psychological powers of reason and will, I take an externalist approach, and draw upon the social-political sense of the term, equating it with sovereignty and rights, and seeing the individual as a jurisdiction, with, if not power, at least authority over herself. (This also is Emerson’s idea of the individual, as a determined creature, but nevertheless one that can determine, in the sense of legislate, a life for herself.)
The precise motivation for why an individual wishes to claim ownership of her creative works is an open question. But as a jurisdiction, with authority over her actions and works, the individual has a right to claim ownership of them. For the rights-based theorist, fairness amounts to a respect for the individual in this sense—in a way that is consistent with respect for all individuals.
Recall Drassinower’s theory of copyright. A work may or may not be deeply attributable to an individual, but she may have a claim to it as a matter of right. The ground for a claim to property, then, is respect for the individual, not as a source of property, but as an individual worthy of respect and rights. Perhaps even the metaphysician could agree to the following: humans may or may not be free or ultimately responsible for their creations, but they are nevertheless individuals, and, as such, they have a right to their works both as the result of, and as integral to, their dignity and self-authority.
This approach is unmistakably Kantian. In a short treatise entitled “On the Wrongfulness of Unauthorized Publication of Books,” Kant argues that the problem with the unauthorized use of other’s expressions is that it amounts to ‘unauthorized agency’ (Kant 1785). The unauthorized individual is acting illegitimately toward the originating author, by making ‘her’ work available in a way that she may not have wished. For Kant, the wrong here is not that of violating other’s rights to their property—indeed, he did not see expressions as intellectual property at all. Rather, the wrong here is that of violating the right of an individual to be her own person. For Kant, as for Drassinower, it is not the individual qua laborer that matters here, rather, it is the individual qua self-government that matters.
V. Concluding Comments
The normativist about intellectual property is not overly concerned with the ultimate origination of creative works, or with the individual’s subjective control over the products of her labor; rather, the normativist is interested in proprietorship as a matter of respect for individual autonomy.
Even though creative works are the mere product of differential replication, there is nevertheless an individual who mediates such replication, and who has authority over her actions. In focusing on a respect for the autonomous individual, the rights-based approach circumvents the requirements of ultimate origination and control for proprietorship, and thereby circumvents some of the questions that determinism raises for intellectual property and copyright. Specifically, proprietorship need not be justified in terms of a subjective nexus between an individual and her intellectual property. On a normative model, for proprietorship to be justified, the work must originate with the individual in a proximate sense, but it does not have to be impossibly original or the product of ultimate control.
One might also consider a rights-based approach to moral responsibility. If an individual does not act freely then it seems that she is not ultimately responsible for her actions. However, an individual may nevertheless take ownership of her actions. Since morality cannot be a completely discretionary matter, this approach requires supplementary arguments for why and when an individual ought to take ownership of certain actions; for instance, in terms of a respect for each other’s autonomy—which is different from being assigned responsibility for actions as a matter of having carried them out freely. This is a decidedly externalist approach to morality, but it is one that would fit with hard determinism (see Bok 1998).
In conclusion, even if our creative endeavours are out of our hands, and we are not ultimately free, there are nevertheless grounds for our claims to, and accountability for, our creative works and actions.