The paradox of property

The two broad senses of the word 'property' shed light on the intellectual property debate.

I've had intellectual property rights on my editor's mind of late. When does a given quotation need "permission" from an author, or an author's estate, to be used in another work? At what point does something pass into the public domain? Does it ever?

Maybe not, I've begun to think, after hearing Duke University legal expert James Boyle interviewed on the National Public Radio program "On the Media."

The original idea behind copyright and patent law was a trade-off: a time-limited right to exclusivity in exchange for a requirement for free competition afterward, to encourage dissemination of knowledge. Congress, however, has extended the copyright term time and again, ostensibly to provide authors an incentive to continue to create.

"You give the limited right to the author to encourage production and distribution," Professor Boyle said, "and then you end the term and you have this world of free competition. Sadly, in the world of copyright, at least, we've given up on that and we have continued to lengthen the term to a point which is now utterly ridiculous. Copyright today lasts for your life, plus 70 years. It's very hard to incentivize dead people to produce new things, but Congress apparently believes that it can."

As host Brooke Gladstone noted on the program, the various meanings of property fall into two broad groups – one defines property as an essential characteristic of something, and the other defines property as a possession, a thing outside oneself, that can be bought and sold. And, she added, citing the Online Etymology Dictionary, the "essential characteristic" sense came first. Only in the 17th century did the "possession" sense become common.

Doing a little further digging of my own in that dictionary, I was struck by how full the vocabulary of property is of references to cattle, some of them subtle. Centuries ago, being a "man of property," to borrow John Galsworthy's phrase, involved owning a lot of critters on the hoof. Chattel, a term for any tangible movable property – household furniture, for instance, but also domestic animals – comes to English through French but is a close cousin of our word cattle. Such property can be "animate or inanimate," as one legal dictionary puts it. The understatement is chilling if you know the history of chattel being used for not only livestock but human beings.

Another "cattle" word in the vocabulary of property is peculiar. Nowadays it's a pejorative adjective, often used for odd behavior, such as pop singer Justin Bieber's "peculiar antics" before and after a recent gig in London. But when peculiar first came into English, in the mid-15th century, it meant "belonging exclusively to one person." Something peculiar to someone was something he "owned." It gives new meaning to the phrase "peculiar institution," a euphemism for slavery.

A "pecuniary interest" in something is a financial interest. To be "impecunious" now is to be unable to rustle up any cash. It used to mean you couldn't rustle up any cattle.

The paradox of property, with its two kinds of meanings, tracks the paradox of property itself, especially now that so much of what we produce and "own" is ideas, not things. How can we cease to own what we invented? How can we fail to own that which is public, available for anyone to possess? Property is both that which can be bought and that which is essentially ours.

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