Say you have a dream about three little electric birds, do these birds belong to you?
Legally, the answer is no. Take it step by step. If these electric birds (let’s call them ABC) were to be a form of property, they would be intellectual property (IP); ABC, with their whirls and proud steel crests, are creations of your mind. Given the imaginative nature of ABC –and the fact that they are neither distinguishing marks nor inventions- any rights to ABC would flow from copyright. And here is our problem. Copyright is restricted to expression. Copyright does not extend to the idea itself. You may have heard that copyright does extend to unpublished work, and this is true. But it does not extend to unexpressed ideas. Unfixed works that have not been recorded in a tangible form are not protected. In other words, according to Lady Justice, your dreamscapes are not yours.
NOTE: There are caveats to the above: one, I assume that “belong” implies property ownership. Two, no intellectual property right will ever grant you ownership of your imagined three little electric birds as they are, in your mind. Even if you wrote down your dream of ABC or drew them out (see above), it is only the manner in which you wrote about them, or the way in which you drew them, which would belong to you.
Property is a unique legal construct. Declaring your dream your property is not going to cut it. It is society that bestows exclusive property rights. Property rights must be granted. Think social contract. Ergo, for ABC to belong to you, we have to find a rationale for private ownership that can stand strong on its own legs.
There are four generally accepted theories justifying IP as a species of property. I will go through three. First –and arguably the most popular amongst property law scholars- is the utilitarian view of Richard Posner and William Lande. This is an economic theory: it is in the best interest of society to incentivise the creation and dissemination of intellectual work. We need ideas and inventions and expression. If IP is not granted the same legal protection afforded to property, authors will not publish, innovators will not invent, and the well of what makes us human will run dry. Second, we have Locke’s theory of labour. Intellectual works require time and effort (even dreams do imply some sort of energy expenditure by your brain and thus must at least minimally qualify) and this must be rewarded. Third, from Hegel we get the ‘extension of one’s self’ theory. A bit harder to chew on, but if a work is an extension of the author’s personality that work is an intrinsic part of the author’s self and thus, holding with natural law, should be protected.
Whether ABC belong to you is not a silly question. There has been an irreversible structural shift in the world economy. Knowledge –technology, methods, techniques, ideas- is emerging as society’s most important asset. More and more, it is the incorporeal and intangible that keeps the earth spinning (as opposed to gold, bread, guns or steel). And since property is a legal construct, it is up to us –us, humanity- to decide that which Lady Justice will use her sword to champion and protect.
Now forget the legalese. Think about this: are your dreams yours?
We often forget to talk about dreams. And yet there is nothing more fundamentally real or yours than a dream.
I have never been to Timbuktu. I have met people that have been, I have seen it on a map, I have read about. But I have never physically been to Timbuktu or set eyes on that city. To me, Timbuktu is less real than my dream of the Black Pearl sailing on solar winds. While I do not doubt the existence of Timbuktu, in the same way I do not doubt the existence of Hamburg or San Francisco, I cannot say with 100% certainty that Timbuktu is real. But my dream which defies all logic is real.
What if the world is a dream? The Matrix cautioned us about accepting reality at face-value. If the world is a dream, then it is not within our control. It is not real and it is not ours. But your dream is. Your dream is yours and no one can take it away from you. If the world comes burning down, that dream still happened, still exists and does not change.
ABC, those three little electric birds, are yours precisely because it is impossible to grant them property rights. ABC belong to you and the best claim anyone else could have to them is to mere imitations of their shadows.
keywords: dreams, copyright, ownership, property, locke, posner, hegel, relative reality, three little birds