Fashion Has No Owner

by Albert Esplugas and Manuel Lora
by Albert Esplugas and Manuel Lora

"[Locke's theory] speaks only to the ownership of atoms, not to the ownership of bits. Locke himself did not try to justify intangible property… By invoking state power, a copyright or patent owner can impose prior restraint, fines, imprisonment, and confiscation on those engaged in peaceful expression and the quiet enjoyment of their tangible property. Because it thus gags our voices, ties our hands, and demolishes our presses, the law of copyrights and patents violates the very rights that Locke defended."

~ Tom Bell, Copy Fighting

If passed into law, a bill referred to Congress would extend copyright protection to fashion designs, from dresses and shoes to belts and eyeglass frames. Prominent designers argue that their designs are being copied even before they appear on the market and this puts their business at risk. They are demanding a three-year copyright over their creations, claiming that they would have a greater incentive to innovate if they were the only ones to get the benefit of their effort.

A similar argument, however, could be advanced by philosophers or economists to demand a copyright over their ideas. Why could a designer copyright a design while a scientist cannot copyright his new theory of evolution? What is the difference between registering a fashion design and registering the Pythagorean Theorem, the law of diminishing marginal utility or the plot of Shyamalan's latest film? If the inventor of the supermarket, the wheel or the ladder had patented his idea, would we say that he was merely protecting his property or would we have accused him of protecting himself against competition? Does the fashion lobby aim to defend their legitimate property or to unjustly profit by shielding themselves from competition? Copyrights and patents are intellectual property rights, that is, rights in ideal objects. Why can some ideas be protected and not others? The fact that even the defenders of intellectual property consider absurd the proposal that any (and every) kind of idea should be protected and that they must therefore establish an arbitrary limit suggests that there is something strange about these "rights over ideal objects" and that the parallel between property over material objects and property over immaterial objects is only apparent.

From a libertarian point of view, a person becomes the owner of an unowned resource when he homesteads it (when he occupies or uses it before anyone else) or when he receives it voluntarily from another owner. He then has the right to do with it whatever he wants so long as this use does not trespass on other's legitimately acquired property. According to the logic of copyrights and patents, however, you only need to conceive of a new way of using a given type of resource — whether you own it or not — to claim partial ownership of that resource. You do not need to have homesteaded it first nor have received it from a previous third-party owner.

Let's look at an example of this. Suppose that George occupies and works an unowned plot of land. He becomes the owner of that plot of land. Richard, who lives across the country and has never even stepped on George's land, conceives of the idea of crop irrigation. The logic behind intellectual property would suggest that Richard, due to his new invention, now acquires a partial property right over George's plot of land; he obtains the right to prevent George from applying this new technique on his own land. Regarding the application of crop irrigation on George's land, he is no longer the full owner of it anymore, since he must now obtain Richard's permission. Richard can block George (and every land owner) from applying his idea even though Richard was not the first occupier (homesteader) of every piece of land over which he now claims control. Is the exercising of this blocking not an invasion of George's land by Richard since the latter prevents the former from doing whatever he wants with his homesteaded land?

Let's also suppose, hypothetically, that Richard is able to conceive of every possible use of iron or steel and patents these ideas. In such scenario, anyone who owns those metals would not be able to do anything with them at all without Richard's permission. Thus, Richard would have de facto appropriated all of the iron and steel in the world without having even touched or used any of it. (Should we not call this expropriate instead?) The same happens, on a smaller scale, with patents and copyrights over concrete uses of a resource.

Why does intellectual property conflict with traditional private property? Because those two concepts refer to goods of a different nature: non-scarce goods (ideas) and scarce goods (tangible resources), and given that rights are always enforced against tangible things (since force is physical), if you grant a right over an idea then this necessarily means granting a right in thousands or millions of scarce resources onto which this idea might be imprinted. In other words, the owner of the tangible goods would no longer be the homesteader (first user/occupier) but instead anyone who can think of a new way of using such property. This is why intellectual property is in direct conflict with the principle of homesteading: in the presence of patents and copyrights we are no longer full owners of resources which we homestead or receive from others. As Stephan Kinsella explains:

"[B]y finding a new way to use his own property (recipe), the IP creator instantly, magically becomes a partial owner of others' property. He has some say over how third parties can use their property. IP rights change the status quo by redistributing property from individuals of one class (tangible -property owners) to individuals of another (authors and inventors)."

Many people intuitively claim that we have the right to exclusively enjoy the fruit of our intellectual creativity. Intellectual property is seen as a mechanism to ensure a fair reward for our creative efforts. However, we do not homestead things by merely making an effort but rather because we first use or occupy it or receive it voluntarily from someone else. It is true that efforts and merit are closely linked to homesteading and wealth but this is not a rigorous explanation as to why we become owners. When we win the lottery we are legitimately enriched yet no one can say that such large amounts of money were the result of our effort. When we inherit real estate or money, we cannot say that this property becomes ours because we have made the effort to obtain it and thus we deserve it. When we receive a gift we become the owners of the gift, but effort had nothing to do with it.

On the other hand, sometimes we work arduously and do not receive the desired reward. Life is filled with unrewarded effort. We always try to obtain what we think we deserve, but we cannot say that it is illegitimate not to obtain it every time. Therefore, it is not true that property is the reward of our effort. It can be, and in most cases it is (as is the case in the market), but it is not a simple effort that turns us into property owners. It is through homesteading and free trade that we become owners and any interference over the use of our own property is tantamount to aggression. Authors obviously have a right to profit from their creations and to try to impede that others profit from them, but only through non-aggressive means, means that do not violate the rights of others over their respective property.

In the case of fashion, why is it illegitimate that, after seeing a dress in a catwalk or on a store display, we later reproduce it with our own fabric? Whose rights do we infringe when we apply the information in our mind on our property? As Roderick Long points out, we can only have a right to that which we can control (because "property" means a "right to control"), and we cannot control an idea that resides in the minds of others. An idea, of course, can be kept secret (as is the case with trade secrets), but once it has been made public, a right to its exclusive control cannot be coherently claimed, because that idea is now being "controlled" by anyone who has internalized it.

Zara and H&M do just this when they reproduce the designs of more expensive brands: their designers are on the lookout to see what others have done. Then they internalize the concept and then it is applied to their legitimately acquired fabric. Must a designer become a partial owner of every piece of fabric in the world by the mere fact of having thought of a way to use it? Further, rarely is an idea completely original; only a small part of it is original and the rest is borrowed from existing ideas. Quoting Thomas Edison: "Genius is one per cent inspiration, ninety-nine per cent perspiration." We do not live in a vacuum; it is impossible to avoid using past knowledge and other's ideas when living and acting in the world. This is especially true in the case of the fashion industry, whose innovation is largely based on preexisting knowledge. Designers would be copyrighting an idea as it were completely new and entirely conceived in their minds, when in reality they borrow from other designs, history, art and things that surround them.

The argument that copyright serves as an incentive for creation does not seem convincing. The fashion industry is one of the most innovative, probably because designers can use preexisting knowledge without restrictions, and constantly redefine and reinvent ideas. As Michele Bodrin and David Levine say:

"While each individual innovator may earn more revenue from innovating if he has an intellectual monopoly, he also faces a higher cost of innovating: he must pay off all those other monopolists owning rights to existing innovations. Indeed, in the extreme case when each new innovation requires the use of lots of previous ideas, the presence of intellectual monopoly may bring innovation to a screeching halt."

Copyrights and patents, as the legal monopolies that they are, restrict competition over the use of an idea. The intellectual monopolist faces less competition, and thus he can charge higher prices and not improve so diligently the quality of his products. Competitors also invent around the monopolist's patent, developing products that are slightly different in order to not infringe on the patent. This is costly and may result in worse products. Likewise, sometimes the monopolist invents around his own patent so as to shield him from competitors inventing around it. As Julio Cole puts it, this means more R&D spending, but is it an efficient use of available resources? We have also to consider the additional resources spent on lawyers and lawsuits because of the existence of intellectual property. Sharon Levine, the associate executive director of the HMO Kaiser Permanente, thinks that "[c]onsumers today are paying an inordinate premium under the guise of creating the stream of innovation in the future. But it's actually funding lawyers."

Indeed, copyright and patent legislation is so far removed from its official purpose that there are companies that simply exist to patent "inventions" and to collect royalties without ever producing a single good or service on the market. These patent trolls are non-producers who benefit by extorting the companies that do produce a good or service based on their ideas.

A three-year copyright would perhaps motivate designers before registering their designs (to quickly profit), but would reduce incentives to come up with new creations during those three years because they would have a guaranteed income. Similarly, copyrights could artificially boost innovation in the fashion industry (or in some fields within this industry), but to the detriment of other industries (or fields of the same industry) not protected by intellectual property. Murray Rothbard explains the distortion of incentives that is introduced by intellectual property:

"Research expenditures are therefore overstimulated in the early stages before anyone has a patent, and they are unduly restricted in the period after the patent is received. In addition, some inventions are considered patentable, while others are not. The patent system then has the further effect of artificially stimulating research expenditures in the patentable areas, while artificially restricting research in the nonpatentable areas."

Consequently, as Cole says, there might not be "more inventions" as a result of copyrights and patents, but simply different kinds of inventions. To this we have to add the other costs just mentioned above.

All things considered, it would seem that designers appeal to the state not to encourage innovation but to obtain perks and to profit by limiting competition. It is becoming more and more obvious that businesses demand rights over ideas so that they can profit at the expense of everyone else. It is not a coincidence that copyright terms have been expanded over time: from 14 years in 1790 (renewable for another 14) to life of the author plus 70 years nowadays (and 90 years in the case of corporate copyright). This is eerily similar to welfare or discrimination laws: new "rights" or classes of people are continually added or expanded by the state so as to benefit some people at the expense of others, all in the name of some glorious end. Sometimes this happens in the name of "social peace" or the "common good" and other times in the name of "innovation" and "progress."

September 27, 2006

Albert Esplugas [send him mail] studies Audiovisual Communication. He is a founding member of the Spanish libertarian think tank Instituto Juan de Mariana and a contributor of the libertarian website Liberalismo.org. You can read his articles here and here. Manuel Lora [send him mail] works at Cornell University as a TV and multimedia producer. Visit his blog.

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