A necessary condition of property is control. To own something is to control it, or at least the part of it that you own. It is to be free to decide how that thing is used, by whom, and for what purpose. Ownership doesn’t require total control - a pet owner could be said to own a dog without being able to control every aspect of it’s behaviour and thought - but it does involve control of who gets access to the dog. I may claim ownership of the moon, but without being able to control who can access the moon, to actually deny access to those I wish to deny access to, then my claims of ownership are vacuous. Ownership then, is a description of accessibility control.
Essential to the nature of ownership is the distinction between the public and the private. Public in this sense simply means accessible by others, while private is that which is not. If something is mine, if I own it, then I can deny access of it to others. If however it is public, I cannot. It is this degree of access to whatever is the subject of ownership that defines it status as public or private.
So private property then, is just property that is not controlled by the public or their representatives. It is property whose use and access is wholly determined by its owner. Public property on the other hand, is property owned, and therefore controlled collectively, and not subject to the exclusive control by any single individual.
While property can be thought of as a descriptive concept - describe the nature of what is, property rights are a normative concept. Property rights are claims of ownership, assertions of how things should be, of who should be permitted to control access to what.
It’s important to clarify here that while property rights are often discussed in the descriptive sense, as in
it is a fact of law that I hold the title to this house, these statements of facts are descriptive statements relating to normative claims. I may legally own this house, and a court may agree with me, but if it is being occupied by another who can physically deny my entry, then my claim of ownership is purely aspirational, consisting of nothing more than
I should be able controll access to the house.
So property rights then are normative claims that seek to define what should and should not be accessible by others. They are not descriptions of who does in fact have access to what.
Ideas can only exist inside a mind 1. When they remain in the mind of an individual, they are ipso facto private because they are not accessible by any other. The only means of controlling access to ideas is to ensure they remain in our minds and not the minds of others. Certainly, ideas can remain private even when we share them with those we trust and providing of course that those others don’t share them further. But when our ideas are shared too widely, they are no longer private because we can no longer control access to them. They are by definition public.
Because ideas can only reside in minds, once they are expressed, access to those ideas cannot be controlled. Short of some mind control apparatus, the only way to control access to ideas is to prevent their expression. The same is true when the manifestation of ideas - information - is stored in physical media owned by others.
A clear tension arises then, when we start to apply the normative conceptions of property rights to widely shared ideas. If property rights are normative claims of what individuals should be able to control access to, and ideas in the minds of individuals are inaccessible to others, then it seems the two concepts are incompatible. Once an idea is in my mind, only I control access to it - I hold ontological privilege. Likewise, once the manifestation of an idea is in some physical media I control, I can be said to own the media while still controlling access to the idea.
And so it is intellectual property rights. Here we see normative claims of ownership asserted over not just private ideas, but ones widely shared and therefore public. The content of a book, the sound of a song, the experience of a movie are simultaneously many things - media, information, sensory phenomena, ideas and knowledge. It might therefore be objected that access to media can be controlled. But this objection ignores two critical points.
Firstly, the media where the manifestation of ideas resides is typically not owned by the claimant of the intellectual property. It is controlled, and therefore owned, by others. Secondly, right claims over media are not intellectual property right claims. Intellectual property rights are not assertions of access control over the physical medium - the sound waves in the air, the paper of the book, or silicon on a chip - they are assertions of access control over the property of minds or proprietary knowledge.
Ideas cannot be owned because once they are expressed, access to them cannot be controlled. But saying that ideas can’t be owned is different to saying that ideas can’t be authored. All ideas, like books, have authors. Sometimes authorship is singular, sometimes joint, and other times multiple independent authors exist like in the case of Newtown’s & Leibniz’s calculus. Authorship may be identifiable, authorship may be attributable, but authorship cannot be transferable. Ownership and authorship are both facts, but only authorship is an immutable fact.
So when you express an idea, you make it public, and in doing so make it ‘unownable’. If you want to prevent others from holding your ideas, the answer is simple - don’t express them.
For the time being, we’ll ignore Berkeley’s subjective idealism - the theory that things only exist inside ideas. ↩