BREAKEY, H. (2012). INTELLECTUAL LIBERTY: NATURAL RIGHTS AND INTELLECTUAL PROPERTY. FARNHAM, SURREY: ASHGATE
In Intellectual Liberty: Natural Rights and Intellectual Property, published in a series of works on law, ethics and governance, Hugh Breakey aims to provide a coherent conceptual foundation for working out the ethical scope properly to be accorded to intellectual property rights such as copyright and patents. He goes to a basic consideration of justifications for property rights and conceptual analyses of how effect might be given to those rights in law. Breakey writes from the perspective of natural rights and includes a discussion of his reasons for taking that approach. Within that perspective and, as the title states, essential to this work is the idea of intellectual liberty. As he states, he hopes 'to reconfigure the way intellectual property is routinely conceived'.
Rather than conceiving of exceptions to property rights, user's rights, as 'only a small tentative island in the large sea that is the fundamental prohi- bition on copying from others' works', Breakey writes that we need to see 'copyright exceptions … [as] a peninsula jutting off a vast continent pro- tecting our freedoms to apprehend, learn and speak. Intellectual property itself is just a small lake in that larger continent' (p. 2).
While it is not where Breakey starts, it is helpful for an understanding of the thrust of his argument to begin with chapter 5: 'The Ethical Justification for the Right to Intellectual Liberty'. In this chapter is his discussion of intellectual liberty in terms of the purpose of most concern to him. He writes:
People have a right, within limits, to apprehend and investigate the world, and to think about it, and to act upon the ideas they have learned. They have, that is, a right to intel- lectual liberty. Human freedom essentially includes the capacity to perform meaningful and purposeful actions - actions infused with intention, experience, thought and learn- ing …. [T]his right has not been accorded its property status in political philosophy or contemporary law. (p. 97)
In his conclusion to this chapter he writes (p. 122): 'The fundamental idea of this chapter is that learning plays a lynchpin but under-appreciated role in human freedom'. It is this idea that provides the purpose for the book as a whole, and this review returns to the argument of this chapter below.
In the Introduction, Breakey defends his taking natural rights as a basis for conceptualising property rights. He evaluates the contribution of Locke to the understanding of property rights as in no way making a new asser- tion that people own what they create. Rather:
The unadorned assertion that people owned what they created was nothing new .… Locke succeeded where his forebears failed, precisely because the constraints he placed on the natural right to property allowed that right to take its place in a larger system of natural law without requiring a parlous appeal to consent. Locke's limitations on prop- erty obviated the need for consent and in so doing opened a viable philosophical space for property as a natural, rather than conventional, right. (p. 7)
This creation of rights without consent is basic to the concept of property. As he writes, 'From a rights perspective, property rights are fascinating philosophical entities':
[P]roperty rights create freedoms for one person by limiting the freedoms of another …. For this reason property rights in natural rights theory trace a line of equipoise, balancing the individual's entitlements based on her own freedom against the duties individuals owe to others out of respect for their freedom. (p. 2)
A key task he sets for himself is to develop a conceptually coherent way of drawing the line in relation to intellectual property and, as he does in his final chapter, to draw this line in its outworking in terms of legal bound- aries, in particular the exceptions for user's rights in intellectual property. For this task, he needs a clear understanding of the nature of property rights. And this is not a simple task.
As Breakey discusses, the distinction between rights generally and prop-
erty rights is drawn between, on the one hand, personal rights - rights 'in personam' - and on the other hand property rights - rights 'in rem', sometimes referred to as creating a relationship between a person and a 'thing', but with the result that the are able to be exercised in relation to all other people, regardless of consent or any other personal basis for the creation of the rights. (It seems that it is an error when he uses these terms spelled 'en personam' and 'en rem' (p. 20).)
Despite common ways of talking about property as things, conceptually
'property' itself is not the 'thing' over which rights are exercised but, rather, what is sometimes called 'a bundle of rights' to be exercised by a person in respect of the 'thing'. The nature and extent of that 'bundle of rights' will differ depending on whether the 'thing' is a motor car or a block of land or some form of intellectual property. As Breakey well recognises, this 'bundle' is not most helpfully conceived of in terms of 'rights' alone. He uses Hohfeld's classical analysis of 'jural relations' (pp. 19-21) to show the diversity of legal entitlements that are required in order to balance the different interests - to 'trace a line of equipoise' - in the law of intellectual property, referring to liberty, duty, claim-right, power and immunity.
That analysis contributes to the context for Breakey's discussion in chapters 2 and 3 of the justifications of limits - 'internal constraints' - on acquisitions of private property, imposing as it does new duties on others without the consent of those others. He moves in chapters 3 and 4 to 'external constraints on property appropriation, that is the types of rights individuals might have that press back against the appropriation of information, ideas and expressions' (p. 3).
It is then that he turns in chapter 5 to what has already been introduced above as lying at the heart of the purpose of his work, with the significance of learning for intellectual liberty and so for human freedom. He describes the right to intellectual liberty as a negative liberty providing people with freedom from interference with what he calls 'four right-incidents' which he has already mentioned but sets out more clearly now (p. 99, his emphasis):
Specifically, I connote a freedom from interference with:
(i) our apprehending the world around us;
(ii) our investigation of the world through our personal actions and senses, and also through and with the voluntary cooperation of others;
(iii) our cognitive assimilation of what we have learned to form new beliefs, values and plans of action; and finally
(iv) our capacity to have our beliefs informed by what we have learned. Breakey says that in this chapter he will provide (p. 98) 'A battery of argu- ments underpinning people's rights to inform their actions by learning about the world'. He sets this 'battery of arguments' in the context of a range of different models of freedom (pp. 97, 98) and argues that each of these models of freedom justifies intellectual liberty and that intellectual liberty is essential to each. As he puts it, 'human freedom has multiple dimensions' (p. 98). He acknowledges that what he calls this 'ecumenical method' (p. 98) has its risks, particularly of contradictions arising between the models or the writings of philosophers from which they come.
After a thought-experiment - The Black-box World - Breakey goes on
in chapter 5 to set out his arguments in seven sections, '7 freedom-based arguments' (pp. 103-119). Concepts in these arguments include rights to: economic independence and self-preservation, self-governance, self- development, learning as an intrinsic good and learning in the course of moral development. It is in this section that he in most detail makes the argument for his conceptual foundation of intellectual property rights based on intellectual liberty. With this argument he is not claiming that the right to intellectual liberty trumps all other rights. 'The right to intellectual liberty is not peremptory in force, … does not operate in a moral vacuum' (p. 100). Rather, his argument for this foundation for the natural right to intellectual liberty gives to debates over the limits of intellectual property rights a coherent conceptual foundation as to where to draw the line between the various claims. His aim is to show that these considerations provide 'powerful constraints on the reach and substance of intellectual property rights' (p. 2).
In chapter 6 Breakey applies his analysis of the right to intellectual lib- erty to contemporary intellectual property law. He not only considers how the present law is consistent with his view but also argues for the expansion of the law in making space for the learning that is at the heart of his under- standing of intellectual liberty.
The complexity of Breakey's thinking is shown throughout the book, including in the way he writes about topics included in the Conclusion, as earlier in the Introduction. Where in the Introduction he wrote in a fresh and interesting way about central topics such as 'natural rights and property rights', at the end he is considering 'The Silence and Invisibility of Negative Liberties' and 'Thingification'. His process of reasoning is a living thing and never dull; at times he does not seem to be fully in control of it.
It would take someone more skilled in the history of ideas than this reviewer to assess whether in the heart of his argument Breakey does go 'stumbling into contradiction' (p. 99). The careful purposive way in which he builds his argument is compelling. His method is sophisticated in its depth and its breadth. This work is a valuable contribution not only to the development of the law of intellectual property but also to a deeper understanding of the relationship between law and liberty.