INTELLECTUAL PROPERTY AS a KIND of METAPROPERTY 1. The

INTELLECTUAL PROPERTY Downloaded from https://academic.oup.com/monist/article/93/3/395/1057694 by guest on 27 September 2021 AS A KIND OF METAPROPERTY

1. The Charging Bull and Intellectual Property A few years ago, a number of newspapers1 reported that Sculptor Arturo Di Modica, who created the famous 7,000-pound bronze bull that sits in the heart of New York's financial district, was auctioning his famous piece to the highest bidder, the minimum bid being five million dollars. There were, however, 'a few' conditions that the buyer had to meet: the new owner had to leave the "Charging Bull" where it was, and had to donate it to New York City. In exchange, the buyer was allowed to get a tax break and to write her name on a plaque designed by Di Modica himself, placed just next the bull. Even if the statue was put up for sale, however, the copyright of the statue was not. Indeed, the copyright remained with Di Modica, who some years later sued Wal-Mart and other companies for illegally benefiting from his copyright, by selling replicas of the bull and using it in advertising campaigns. Having found no supplementary information about the strange story, I have no idea of whether the sale was ever completed. Regardless of whether it was completed or not, however, we are left with much that is not easy to understand clearly. One question is: is there anything in the above story that is put up for sale? More precisely, does the transaction transfer any entity from the seller's to the buyer's property in exchange for money? Certainly, if the sale occurs, some money goes from the buyer to the seller, but what (if anything) follows the reverse route? One can hardly believe that what is transferred in exchange for money is the Charging Bull. For, suppose that the buyer can do nothing with the Charging Bull except affix her name at its foot. Can the buyer be said to become the owner of the bull in virtue of that? It seems not. For one can hardly see a sense in which someone who can do with some object nothing except stick her name on it can be said to be 'the owner' of it. Perhaps what we

need is a distinction between property and usufruct. Once we have the dis tinction, we can say that what the buyer obtains in exchange for money is bare ownership of the Charging Bull, where bare ownership is ownership without usufruct. Still this is unconvincing, however, for the buyer must Downloaded from https://academic.oup.com/monist/article/93/3/395/1057694 by guest on 27 September 2021 donate the Bull to New York City and it is far from clear that someone can be meaningfully said to obtain ownership (regardless of whether bare or not) of something that must be donated to someone else. For, how can anyone become the owner (not the mere usufruct holder) of a good that is owed to someone else? If it is not the Charging Bull that is put up for sale, however, what is transferred from the seller's to the buyer's ownership in exchange for money? Is it perhaps some less material entity that the buyer buys? What relationships might this thin, intangible entity bear to the more physical Charging Bull, if any? And how can we exclude that the buyer pays for something that one cannot own—a service rather than a product? We seem to have no firm intuitive grip on what happens here. As I said, we do not fully understand what the seller gives to the buyer in exchange for money. But we have no better understanding of what the seller does not give to the buyer inasmuch as he continues to hold the copyright of the Bull: is the copyright of the Bull ownership of anything and, if so, of what? Assuming that the former issue is apt to cast some light on the latter, I shall use the Charging Bull's story as a case study better to understand the nature of copyright and more generally of intellectual property. As it is currently used, "intellectual property" is not a precise, technical expression, but a gesture in the direction of a wide category of rights variously connected with the exploitation of the works of the intellect— most typically, copyrights, patent rights and branding rights. Since one can doubt that a patent right (for example) is property of something in the same way as property of an apartment, one can wonder to what extent the use of the word "property" to refer to such rights can be taken at face value rather than as a mere fag on de dire. If one calls a right "proprietary" just in case it is a right over something besides being a right towards someone, one might be tempted to think that intellectual property is a varied set of nonproprietary rights—like the right of way, or the right to equal opportunity, or the right to vote, that in no way are rights over something but only rights towards someone. If copyrights, patent rights and branding rights are nonproprietary, they should not be conceived of as INTELLECTUAL PROPERTY AS A KIND OF METAPROPERTY 397 diverse species of a particular kind of property that one can decide to qualify as "intellectual." If so, the expression "intellectual property" is at best a mere facon de dire. If not, intellectual property is a genuine kind of property—a relation that subjects can bear inter alia to objects—and it Downloaded from https://academic.oup.com/monist/article/93/3/395/1057694 by guest on 27 September 2021 becomes reasonable and interesting to wonder how this relation differs from the ordinary relation of property—the familiar relation that, say, my daughter bears to her bicycle. A relation R can be characterised by saying: A) What kinds of entities can bear R to each other; B) What circumstances have to occur in order for things of that kind to bear R to each other. It may be tempting to think that intellectual property, conceived of as a genuine proprietary right, differs from ordinary property primarily in virtue of A). If so, intel lectual property is nothing but standard property of goods of a nonstandard nature, which means that it differs from ordinary property rather as real property differs from movable property—i.e., in virtue of the nature of the goods (movable like livestock or immovable like land) that one can have property of. If intellectual property is nothing but property of 'intellectual' goods, a theory of intellectual property can only be a 'regional ontology' of intellectual goods. The distinctions between material and immaterial, particular and universal and, finally, natural and artificial have been variously used to understand the ontological nature of intellec tual goods. Intellectual goods are currently assumed to be immaterial (like ideas, pieces of information, and techniques) rather than material. They are assumed to be universal types rather than singular tokens (which is used to explain why intellectual property allows one to copy, imitate, or repeat particular entities—things or processes). And they are assumed to be artificial rather than natural (which is used to explain why intellectual property can only occur where some form of authorship occurs, since nobody can have authorship of a natural object).2 Starting from an analysis of the Charging Bull case, I shall argue that intellectual property—in all of its forms: copyrights, patent rights and branding rights—is a genuine proprietary right, that is, a right over something towards someone. But I shall also argue that what essentially distinguishes intellectual property from ordinary property, if anything, is B) instead of A): basically, intellectual property and ordinary property are not the same relation to objects of different kinds, but instead different relations to objects of the same kind. I shall argue that intellectual property 398 ANDREA C. BOTTANI is basically a thin kind of proprietary right, which I shall call 'metaproperty' and shall treat as a component of ordinary property. Therefore, meta-property is neither a right over the abstract and general kinds of the material and particular objects we have ordinary property of, nor a right Downloaded from https://academic.oup.com/monist/article/93/3/395/1057694 by guest on 27 September 2021 over the ideas and techniques variously relating to the production of those objects, but instead a right over those material and particular objects themselves. More precisely, intellectual property is meta-property of maximal groups of material, particular and artificial entities bearing the relation of copy (or rather, the ancestral of that relation) to each other. Since I deny that the notions of immaterial and universal can be of any relevance in order to understand intellectual property, what I propose is a nominalistic and materialistic theory of what intellectual property is. If one follows Quine in distinguishing between ideology and ontology of a theory,3 one can see that very often theoretical problems can be variously solved by strengthening either the ideology or the ontology of a theory. A well-known example is the theory of modality: one can give a semantics for our modal discourse either by extending standard logic (leaving ordinary ontology fixed) as modal quantified logic does, or by extending ontology (leaving standard logic unaltered) as counterpart theory does. I shall suggest that there is no need to enlarge the ontology of ordinary physical goods in order to account for intellectual property, all that is needed is to enrich the ideology of ownership relations as this is required by our current social practice.

2. A Case Study There are two related issues concerning the Charging Bull on which we have no firm intuitive grip. First, we do not understand what the seller gives to the buyer in exchange for money; second, we do not understand what the seller does not give to the buyer inasmuch as he continues to hold the copyright of the Bull. Having assumed that the former issue is apt to cast some light on the latter, and so on the nature of intellectual property, let me begin by examining some possible ways to get clearer about it. 1. Events. There is nothing here—nothing at all—that is transferred from the seller's to the buyer's ownership in exchange for money. The buyer does not pay the seller to obtain ownership of anything, she pays the seller for the same reason I pay my barber. When I leave a barber's short- INTELLECTUAL PROPERTY AS A KIND OF METAPROPERTY 399 haired, I fail to own anything new, which is instead the case when I leave (say) a perfumery, or a music shop where I have bought something. I do not pay my barber for a product, I pay him for a service. A service is nothing but an event—a haircut, for example—and paying for a service is Downloaded from https://academic.oup.com/monist/article/93/3/395/1057694 by guest on 27 September 2021 paying so that one makes an event to occur. In a sense, paying so that one makes an event to occur is buying an event, but only insofar as 'buying an event' does not mean 'obtaining ownership of an event', for nobody can in any way own an event. Granted, one can have legal rights over all the replicas of some event, but nobody can be the owner of a singular and particular event for a very simple, plain reason: particular events go out of existence just when, becoming complete, they finish coming into existence, and nobody might in any sense own anything so ephemeral (only once I make the last step is my walk complete; but just then, my walk no longer exists). This also explains why nobody can pay either for a past or for a present singular event (unless one pays for some future replicas of a single past or present event). What the "buyer of the Bull" really pays for is a service like a cut hair—she pays in order that someone affix the buyer's name at the Bull's foot.4

2. Rules and rights. The buyer of the Bull does not buy an event, she buys a rule that allows her to buy an event. In other words, she pays in order to have the right to produce an event (an act of affixing her name at the Bull's foot). Suppose that one becomes a member of a local tennis club. The club is governed, say, by the following rules. In order to become members, people pay a membership fee. And members are allowed to pay what is due to play tennis in the club whenever they want with any people they want. If so, people who pay the membership fee do not buy an event but instead a rule that allows them to buy events (that is, a right to pay in order to make some tennis matches occur). This is also the case of the buyer of the Bull: she does not buy an event (an act of affixing her name at the Bull's foot) but the right to buy the event (i.e., to pay someone who makes the affixing occur).5

3. Abstract objects. What the buyer of the Bull buys is neither an event nor a rule, still less the material bronze object that the statue is. She buys an abstract, immaterial, and intangible but objective entity that is conveyed by the statue or is somehow 'attached to it'—something one 400 ANDREA C.BOTTANI might call 'the meaning' of the Charging Bull, or its 'imaginary content', or the values 'embodied' in it. Perhaps this abstract entity can be conceived of as a trope (the vigour, energy, and positiveness of the Bull), perhaps as a universal property paradigmatically exemplified by the Bull, Downloaded from https://academic.oup.com/monist/article/93/3/395/1057694 by guest on 27 September 2021 perhaps as a set of common beliefs and intuitions concerning the Bull, perhaps as an abstract entity that the Bull physically represents, rather as a toy soldier represents a real soldier or a teddy bear a real bear. By affixing her name at the Bull's foot, the buyer obtains ownership of this abstract entity, inasmuch as the Bull's image becomes her own image. Thus, the buyer of the Bull really obtains ownership of something that she did not own before. By attaching her name to the material Bull, she ma terially becomes the owner of an immaterial good. According to this solution, the transaction really transfers a good from the seller's to the buyer's ownership, which is denied by all the preceding solutions. Even though this immaterial good can have no important economic value for a single citizen, it can be used by many companies as an instrument to yield profit. This explains the very high value of the minimum bid.

4. Material objects. Contrary to all appearances, it is the material statue—-just the bronze object and nothing else—that is transferred from the seller's to the buyer's ownership. But there are 'weak' and 'robust' ownership relations (from a maximum to a minimum degree through all the nuances of a continuum) and the 'conditions' laid down by the seller are exactly intended to weaken to a minimum the proprietary right that the buyer can obtain over the material bull in exchange for money. Roughly, 'weakening' (or 'strengthening') a subject's proprietary right over an object means reducing (or extending) the subject's exclusive discretion in using the object. This idea is grounded on the intuition that being an owner of an object means having some exclusive right to use the object at will. Such a right, however, can never be absolute, and is severely limited by physical and legal factors, as well as by the particular content of com mercial agreements. And here the buyer's proprietary right over the Bull is subject to maximally severe limitations. Most interestingly, 5 and 4 converge on the idea that there is something that really the Bull's sale transfers from the seller's to the buyer's ownership. But 4 grounds the idea by extending ontology, while 5 leaves ontology unchanged and makes the ideology of ownership richer. INTELLECTUAL PROPERTY AS A KIND OF METAPROPERTY 401

What about 1-4? Perhaps none of them is without problems, but certainly 1 seems to be most implausible. For more than one reason, indeed, what the buyer buys does not seem to be even an act of affixing the buyer's name at the Bull's foot (i.e., an event). First, it is up to the Downloaded from https://academic.oup.com/monist/article/93/3/395/1057694 by guest on 27 September 2021 buyer and not to the seller to make an event of affixing occur. Second, the buyer must in the most typical case pay a craftsman to prepare the plaque and put it at the Bull's foot; at best, it is thus the craftsman—in any case not the seller—that plays the role of the barber in making the desired event occur. Third, the buyer can decide, at least in principle, not to produce the event of affixing her name at the Bull's foot. She is allowed but not obliged to do so by the contract of sale. Thus, we are left with three ideas of what it is that the seller gives to the buyer in exchange for money by virtue of the described transaction. One can have three parallel ideas of what it is that the seller does not give to the buyer inasmuch as he continues to hold the copyright of the Bull— i.e., three parallel ideas of what the copyright of the Bull is.

1. The copyright of the Bull is ownership of nothing, just a non-pro prietary right that the seller decides not to transfer to the buyer.

2. The copyright of the Bull is ordinary ownership of a non-ordinary, abstract entity that the seller keeps for himself, i.e., does not allow anyone else to use (something like the idea of the Bull, or its shape, or the universal kind of which the Bull is a paradigmatic instance). Whatever it is that the seller sells, it is something else.

3. The copyright of the Bull is a nonordinary, very weak kind of ownership of the ordinary material bull—just the bronze statue and nothing else. Whatever ownership of the Bull the buyer obtains from the seller, certainly it is ownership of a different sort.

I shall totally reject 2 and only partially reject 1 and 3. Concerning 1, I shall argue that the copyright of the bull is a right, but in no way a non proprietary right. Concerning 3,1 shall argue that the copyright of the Bull is a kind of ownership of material objects (i.e. a certain right over them), but in no way ownership of the Bull. Let me begin by telling something general about ownership. 402 ANDREA C. BOTTANI

3. Three Plain Facts About Ownership I own my umbrella. If I own it, this will certainly mean something

and will certainly depend on something. Here are two distinct, however Downloaded from https://academic.oup.com/monist/article/93/3/395/1057694 by guest on 27 September 2021 closely tied, questions: the question of what ownership is and the question of how it is established. I shall focus here on the former question, leaving aside the latter. Given that I own my umbrella, what does it mean that I own it? Given that in the past I became the owner of it, how did the world change in virtue of my becoming the owner of it? What difference did it make to me? And what difference did it make to the other people? One plain fact about ownership is that, if the umbrella is mine, then I can generally use it as I want. Not only can I use my umbrella as umbrellas are normally used, that is, for being held above one's head when it is raining, I can also use it in a number of less 'normal' ways—as a decoration hanging on a wall of my living room, for example, or as a supporting framework for a creeper—and I can even lend it to my friend Maria, so that she decides to use it as she wants. In a number of circum stances, however, I just cannot use the umbrella as I want even though the umbrella is mine. I might want to use the umbrella as a magic wand, for example, or as a parachute, but the physical laws do not allow me to do so. In other occasions, I might want to use the umbrella to hit somebody over the head, but the legal norms of my country to not allow me to do so. If the umbrella is exclusively mine, however, I can always use it as I want, provided that the physical laws and the legal norms of my country do not prevent me from doing so. Another plain fact about ownership is that nobody except myself can use my umbrella at will. Since the umbrella is mine, nobody can make any use of it unless I permit her to do so. If I lend my umbrella to Maria, she can make many different uses of it, but not all the uses that I myself could make (for example, she cannot destroy the umbrella, give it as a present, sell it or make it irrecoverable in any way). More importantly, lending something to Maria for some time does not amount to abstaining from deciding how the lent object must be used during that time, but instead to deciding that it must be used in all the legitimate ways Maria will decide to use it during that time, and in no other way. If I am the sole owner of something, my right to decide how to use it must be exclusive (not only can I decide how to use it, but also forbid anybody else from deciding how to use it). INTELLECTUAL PROPERTY AS A KIND OF METAPROPERTY 403

A third plain fact about ownership is that the owner of an object can decide to sell the object she owns, give it as a present, or destroy it. All these are nothing but particular uses of the owned object. An important common feature of all these uses, however, is that they cancel the Downloaded from https://academic.oup.com/monist/article/93/3/395/1057694 by guest on 27 September 2021 ownership relation between the owner and the object she owns. Either they prevent anybody (including the owner) from bearing any proprietary relation to the owned object (which is the case if the owned object is destroyed), or they prevent just the owner from continuing to own an object, by transferring ownership of it to another people (either in exchange for money, if the object is sold, or in exchange for nothing, if the object is given as a present or bequeathed). To sell, destroy or give as a present something that one owns are decisions to use an object that prevent any other decision to use it (rather as committing suicide or giving oneself up as a slave, are free decisions that prevent any other free decision). This shows that in general the owner of something disposes of the object she owns to such a degree that she can even remove the owned object from her own ownership. Not only does the owner have the right to use the owned object at will, she can also dispose of this very right to use. The right that the owner of something has over her own ownership of the objects she owns is a fundamental aspect of the greater part of the property relations we bear to ordinary goods. I shall call 'metaproperty' the owner's right to dispose of her own property right over something she owns. What is important is that metaproperty is just an aspect of property, of the owner's right to use at will the object of property. Thus, it is not the case that ownership of an object is the right to use the object itself while metaproperty of an object is the right to use something else. On the contrary, metaproperty is a right over the owned object itself, to determine or modify the ownership relations that people bear to the object. Donations, sales, barters and so on are just uses of what one owns, in the plain sense that one can donate, sell or barter only something one owns. It is evident that all three of the rights I have outlined can be limited by something other than the physical and juridical laws. For example, they can be and often are variously weakened by commercial agreements between the seller and the buyer of a good, sometimes incorporated in a sale contract. A view easement across your land, for example, weakens your right to use your land as you want. A right of way across your land 404 ANDREA C. BOTTANI

weakens your right to prevent other people to use your land as they want. In time-sharing, both the right to use the object of property at will and the right to prevent others from using it at will are severely limited for all of the owners. And one can easily describe cases in which it is metaproperty Downloaded from https://academic.oup.com/monist/article/93/3/395/1057694 by guest on 27 September 2021 —that is, the owner's right to cancel or transfer at will her own right to use the object of property at will—that is variously limited or weakened, even though it may be unclear up to what extent this right can be limited without transforming ownership in something else. Most plausibly, for example, the owner of a good cannot be legally obliged to destroy the good, or to give it as a present without eo ipso losing her ownership of it (as soon as the obligation occurs, not as soon as the obligation is fulfilled). But it seems implausible that the owner of a good cannot be obliged to sell the good, and still more implausible that she cannot be prevented from selling what she owns. What is certain is that the rights that the owner has qua owner can be graduated from a maximum to a minimum, passing through all the nuances of a continuum. Nevertheless, ownership cannot be graduated, for being the owner of an object is tantamount to having property rights (over the object towards other people) to some degree greater than zero— or, more plausibly, to a sufficient degree, where it is a vague matter how great a degree must be in order to be sufficient.6 Likewise, the predicate 'parent' cannot be graduated (it is meaningless to say that someone is more parent than someone else, even though someone can have more children than someone else), for being a parent means nothing but having at least one child.7 What does it mean that the owner has the right to use the object of property at will, the right to prevent others from using the object of property at will, and the right to cancel or transfer her own right to use the object of property at will? Take again my umbrella. There are a lot of events in which my umbrella participates as an 'actor'. In some of them, no human will plays any role: a blast of wind can make the umbrella roll on the ground, the sun can shine on it, a woodworm can gnaw at its handle, etc. Many of the events in which the umbrella participates, however, are actions, that is, are partly or totally produced by someone's will. In some of them, the umbrella participates by mere accident. I can stumble over the umbrella while running; during a football match with some friends the ball can hit the umbrella due to a clumsy shot etc. There INTELLECTUAL PROPERTY AS A KIND OF METAPROPERTY 405 are, however, many actions in which the umbrella participates by agent's intention rather than by accident (in all these cases, it is the aim of the action that explains why the umbrella participates in the action itself). I can take the umbrella leaving home, open the umbrella when it rains, put Downloaded from https://academic.oup.com/monist/article/93/3/395/1057694 by guest on 27 September 2021 it away in a storeroom, etc. Actions of this kind are uses of the umbrella. To be the owner of the umbrella, so to say, means to have the legal power to decide what uses of the umbrella can occur and what cannot.8 When legal norms say nothing about a certain use of the umbrella, the owner's will stands in for the norms. If x is the owner of y, then z's use of y is legally possible if and only if the legal norms impose it or (inclusive) x allows it; and x's use of y is legally impossible if and only if the norms forbid it or (inclusive) x prohibits it.9 The degree of a proprietary right over an object can be better under stood now in terms of the extent of a certain category of uses of the object—all those that the holder of the right can legally allow or forbid. Take again time-sharing. If a time-sharer holds week 26 at a resort, there is a category of possible uses of the resort—all those that are allowed by the legal norms and occur during week 26 of every year—that are legiti mate if and only if the holder of week 26 allows them and illegitimate in any other case. For any time-sharer, there is thus a specific category of uses of the resort that only that time-sharer can allow or forbid and its boundary defines the limits of time-sharer's property right over the resort. Time-sharers have symmetrical property rights over the resort: they can allow or forbid uses of the resort that have the same intrinsic nature, the only difference being the time of their occurrence. This, however, is in no way necessary. Imagine the unusual case of an apartment with two different owners, 'owner A' and 'owner B'. Owner A can allow and prohibit nearly every legal use of the apartment, but cannot decide to sell the apartment, or to transfer the ownership of it in any way to someone else. Owner B can decide to sell (or keep) the apartment but can make no other use of the apartment. Moreover, A cannot oblige B to sell B's property right over the apartment without selling her own property right over it (even though, in case of sale, A and B can sell their property rights to different buyers). A and B maintain their property rights over the apartment for all their lives, and can even bequeath them after their deaths. If B decides to sell the apartment, both A and B can get money from the sale, according to the specific weights of their property rights 406 ANDREA C. BOTTANI

over the apartment (that is, the breadths of the categories of uses that can be allowed or forbidden respectively by A and B). The described case should not be conceived of as one in which an apartment has one usufruct holder (namely, A) and one owner (namely, Downloaded from https://academic.oup.com/monist/article/93/3/395/1057694 by guest on 27 September 2021 B). To see why, consider that A's property rights (just like B's) are tem porally unlimited, can be left to an inheritor, and cannot cease unless the rights of the other owner also cease. Moreover, B has no obligation to give back the apartment to A or to anybody else and the apartment cannot be sold unless a deed is signed by both B and A (B might be able legally to oblige A to sell her property rights over the apartment, but cannot sell A's rights in her place). A and B seem thus to be (partially) owners of the same good, that is, to have different property rights over the same immovable. What is important, however, is that the uses of the apartment that A and B can respectively allow or forbid have a radically different nature. A has the right to allow or forbid every legal use of the apartment except those that cancel, transfer, or modify in any way some rights to use the apartment itself (that is, some property rights over the apartment). Uses of this variety can be allowed or forbidden only by B, who nevertheless can say nothing concerning any other use of the apartment. If so, A has every property right over the apartment except what I have called 'metaproperty', while B has just metaproperty of the apartment. This shows that metaproperty can in principle be separated from any other property right. It must be noted, however, that the maximally robust property rights that A holds on the apartment depend on the maximally thin property right that B holds on it (i.e. metaproperty), for B can oblige A to sell the apartment. This kind of dependence is typical of metaproperty: every property right depends on metaproperty, including metaproperty itself. 4. What Copyright Is a Right Over? Does this analysis of ownership tell us how to choose between the three above-mentioned conceptions of what the copyright of the Bull is? Is copyright a nonproprietary right, a proprietary right over intangible objects, or a proprietary right over material objects? Sometimes, to understand what counts as a possible violation of a right can help to understand the very nature of the violated right. So, I shall begin by asking what it is that one who violates a copyright really does. Suppose I borrow a book in a public library. Since I find it very in teresting, the day after I photocopy it at home from beginning to end. Certainly INTELLECTUAL PROPERTY AS A KIND OF METAPROPERTY 407

I commit a crime, but it is not entirely clear in what the crime can consist. The photocopier is mine, just as the sheets of paper on which the photo copier arranges ink particles just as they are arranged on the pages of the original book. And the electricity required by the entire process mildly Downloaded from https://academic.oup.com/monist/article/93/3/395/1057694 by guest on 27 September 2021 increases the amount I owe the local electric agency at the end of the month. So, the copy I make seems to be in every respect mine: if I give back the book to the library, in no way can I seem to appropriate something that belongs to someone else. It might be tempting to conclude that the crime I commit does not consist in stealing anything but rather in performing an action that I am not allowed to make—just as if I had violated a speed limit, or ignored a stop, or played a disc too loud at night. The crime does not seem to consist in appropriating something belonging to someone else, but in the very action of copying the volume. One might then be tempted to argue that, if a copyright violation is not a kind of theft, copyright is not a kind of ownership, but a nonproprietary right. This is just conception 1 of section 2 above: there is nothing of which the copyright of the Bull is ownership. Here is a possible argument.

1. For any x, any y, if x is a property right and y is an action that violates x, then y is a theft 2. My action of copying the book violates the copyright of the book 3. My action of copying the book is not a theft

4. Copyright is not a property right (from 1-3, by Modus Tollens)

Although the argument is formally correct, premise 1 is highly im plausible. Indeed, all uses of an object of property (say, a car or an apartment) that the owner does not authorize or even forbids, as well as all actions that prevent an owner from legitimately using what she owns, are certainly violations of property rights but are not thefts. No violation of property rights is a theft unless it attempts to change a metaproperty right (namely, the owner's right to dispose of her own ownership of the object of property), claiming to transfer the ownership of the stolen object from the owner to the thief. A copyright violation may or may not be a theft in this sense. In either case, a copyright violation seems to break a property right and not a right of some other kind. In order to violate a copyright, indeed, one must use something in an unauthorized way, for 408 ANDREA C. BOTTANI

one must copy something that could only be copied by someone else (the copyright holder). Whatever a copyright may be, it might thus be suggested, it is a property right over those very object(s) that one illegiti mately uses when one violates the copyright itself. Downloaded from https://academic.oup.com/monist/article/93/3/395/1057694 by guest on 27 September 2021 This suggestion is less accurate than it may seem. In the simplest cases, indeed, one violates the copyright of a volume by putting a partic ular object made of paper and ink in a photocopier. But one might as well violate the copyright of the same volume by using another object of the same sort (another copy of the same volume). So, what exactly is it that one uses whenever one violates the copyright of the book? Here are three possible answers. A) When one finishes a book, one delivers a manuscript or a file to the publisher. Violating the copyright of the book is tantamount to copying the original manuscript or a copy of it (more precisely, anything that bears to the manuscript the ancestral of the relation of copy). The copyright of the volume is a property right over the original manuscript—the copyright holder's exclusive right to use the manuscript to get direct or indirect copies of it. B) When we talk of a book, we may mean either of two things: a par ticular token made of paper and ink and a universal type—a work—made of sentences as distinct from their occurrences.10 Two copies of 'Waverley' are different tokens but the same type. Copying a book is tan tamount to producing a new token of the same type. The copyright of the volume is a property right over the volume as a type—the copyright holder's exclusive right to use the type to produce new tokens of it. C) All copies of the same book are realizations of the same complex idea (the author's original idea). Copying a book is tantamount to producing a new physical realization of the same idea. The copyright of the volume is a property right over the author's idea (whatever it may be)—the copyright holder's exclusive right to produce new physical real izations of it. Answer A is just conception 3 of section 2: the copyright of the Bull can only be a property right over a physical object, the Bull itself. Answers B and C, on the contrary, are different ways of implementing conception 2: the copyright of the Bull is a right over an intangible object, distinct from the Bull itself. A, B, and C differ in important respects, but yield the common problem of explaining how one can have an exclusive INTELLECTUAL PROPERTY AS A KIND OF METAPROPERTY 409 proprietary right to make copies of an individual, tokens of a type, or re alizations of an idea while there is no limit to the number of copies that can potentially be made of an individual, tokens that can be potentially made of a type, or realizations that can be potentially produced of an idea. Downloaded from https://academic.oup.com/monist/article/93/3/395/1057694 by guest on 27 September 2021 Property rights exclude other people from using the object of property just to protect the owner's power to use it, but this can make any sense only provided that the owner cannot use freely the object of property if other people are also able to use it. My power to use my car, computer, or clothes diminishes if some other people are also allowed to use them. But there can be no rationale in excluding other people from producing replicas, tokens, or realizations of something, since their power to do so can in no way limit my power to do the same with the very same entity. If this means something, this is that a common assumption equally presupposed by A), B) and C) must be given up, namely, the idea that copyright is a proprietary right over originals and not over copies. Copyright cannot be the exclusive right to use a book, a statue, or whatever so as to get copies of it. As a property right over something, copyright can only be an exclusive proprietary right over all the copies of an original, tokens of a type, or realizations of an idea, instead than a right over the original, the type, or the idea themselves. If I illegally copy a volume, accordingly, my crime does not consist in making copies of the volume, which can cause no harm to the copyright holder, but in appro priating the copies produced, which violates the right that the copyright holder has over them. The mere production of a copy of a work can cause no harm to the copyright holder unless someone else appropriates the produced copy, for in no other case the copyright holder can run the risk to sell less copies of the work. Against all appearances, violating copyright is not tantamount to producing a copy but to appropriating it, which confirms that copyright is a proprietary right over copies, not over originals.

5. Intellectual Property Defined What kind of property right can a copyright holder have over all the copies of an original? Needless to say, if I make a copy of a book, the copyright holder can have ownership of the copy I make in no ordinary sense, for the paper and ink of which the copy is made are mine, and so she cannot take it home, to put it in her bag, write on it, etc. Nonetheless, the copyright holder has on the copy a right that I violate insofar as I ap- 410 ANDREA C. BOTTANI propriate the copy, using it in some of the ways a volume is typically used, namely, as something distinct from the paper and ink of which it is made. The right of the copyright holder that I violate is just the right she has over all the copies of the same book: the right to prohibit other people from ap Downloaded from https://academic.oup.com/monist/article/93/3/395/1057694 by guest on 27 September 2021 propriating them. I have called 'metaproperty' of a good the right to modify the ownership relations that people bear to the good—the right to transfer ownership of the good by selling it, destroying it, or giving it as a present. Metaproperty is just an aspect of ownership, of the exclusive right legally to use something. It is the right to use the object of property so as to alter the property rights that people have over the object itself. If copyright is the right to prohibit other people from appropriating copies of a work, copyright is nothing but an aspect of metaproperty. Granted, the holder of a copyright does not even hold complete metaproperty of the copies of a work. For example, she cannot sell or give someone else the copy I make, because the paper and ink of which the copy is made are mine. We might say that the copyright holder has negative metaproperty over the copy I make: she cannot transfer to someone else the ownership of the copy but nevertheless can prohibit anybody (including me) from appropriating the copy qua copy (namely, to use it as something different from the paper and ink of which it is made). If I ask the copyright holder to appropriate the copy I made and she accords permission in exchange for some money, I get complete ownership (including metaproperty) of the copy, and can even sell it, give it as a present etc. If she denies permission, nobody can use the copy qua copy. If I bought the book instead of photocopying it, things would not be much different. In the price of a book there is an amount that the buyer pays to get the right to obtain ownership of a copy of the book and a price she pays to obtain ownership of that copy. In principle, the former amount should equal the amount I must pay in order to appropriate a photocopy of the same book if the materials are mine. Copyright can then be precisely defined in terms of negative metaprop erty as follows. Definition: lfs is a subject, a an individual artefact and t a time, s holds the copyright of a at t iff for any c bearing the ancestral of the relation of copy to a, any t 'a t, if c comes into existence at t', then s has negative metaproperty of c at t'.'' Here are some corollaries. INTELLECTUAL PROPERTY AS A KIND OF METAPROPERTY 411

(i) Copyright is a proprietary right (ii) It is a proprietary right over copies, not over originals. Downloaded from https://academic.oup.com/monist/article/93/3/395/1057694 by guest on 27 September 2021 (iii) It is a metaproprietary right, so a violation of it is theft (it consists in appropriating something, attempting to illegitimately change property rights, and not simply to violate them). (iv) Both copies and originals, as well as subjects, are material partic ular entities. Therefore copyright relations are true of nothing but material particulars. Copyright is a complicated proprietary relation between simple ordinary entities, not a simple relation between nonordinary entities.

(v) Copyright can only be a proprietary right over artefacts.

(vi) Copyright of a work requires neither full ownership of the original work nor mere metaproperty of it. In the Bull case, for example, Di Modica sells the Bull, but continues to hold the copyright of it (remember that copyright is a proprietary right over copies, not over originals).

I assume that both the definition and the corollaries can be extended with few modifications to all varieties of intellectual property rights, though I have no space to argue for this here. Concerning patent rights, for example, the set of entities of which one must have negative metaproperty in order to have a patent right cannot plausibly be defined only by pointing to an original and defining a relation of copy. Rather, the relevant set will also be defined relating to accurate linguistic descriptions of techniques, instruments, and procedures (as well as dates, since patents rights, just like copyrights, have both a scope and a duration). Perhaps, many of the difficulties one finds when trying to apply intellectual property notions and distinctions to the taxonomical nightmare of cyberspace are exactly due to the extremely thin material status and chronological transiency of the greater part of the strange creatures that have adapted to live in that ontological niche, hard as it is to classify them in clear-cut, precise sets. At any rate, intellectual property remains metaproperty of maximal groups of material, artificial particulars bearing the ancestral of the relation of copy to each other. In order to interpret predicates like "having 412 ANDREA C. BOTTANI the ownership of or "having intellectual property of nothing but material particulars are required: nothing else is needed. Downloaded from https://academic.oup.com/monist/article/93/3/395/1057694 by guest on 27 September 2021 Andrea C. Bottani Universitd degli Studi di Bergamo

NOTES

1. See The Wall Street Journal, 20 December 2004. 2. Nonetheless, intellectual property is not intellectual authorship, since one can have intellectual authorship but not intellectual property of something, or vice versa. 3. See Quine 1961, p. 31, 1972 p. 559. 4. Incidentally, this shows how difficult giving an account of ownership in terms of a pure ontology of events can be. Nobody could own anything if only events existed. But, on the other hand, nobody could own anything if no events existed. For one can own some entity only if one has the right to produce actions by using that entity. And actions are nothing but events, that is, entities that can become complete only by going out of existence. In order to account for ownership, we must have, to use the terminology of Smith and Grenon (2004), a mixed ontology of 'snap' and 'span' entities, where span- entities are four-dimensional events having temporal parts and snap-entities are three-dimensional continuants lacking temporal parts. To see the importance of events in an account of ownership, one has only to realize that economic value is prima facie nec essarily associated with the right to make future events real. The value of a service is the right to make a single future event (or at best a series of repetitions of it) real. The value of a product is the right to make a potentially infinite number of events of one category real (all the events that one can legally produce by using that product). The value of an amount of money is the right to make a potentially infinite number of events of a poten tially infinite number of categories real (all the events that one can legally produce by using any product or receiving any service that the amount of money can legally be used to buy). So, as far as economic value is concerned, money is to products as products are to services. 5. In the remaining part of this paper, I shall use the notions of right and rule without attempting any theoretical treatment of them. Regarding this, see Searle (1995), Reinach (1913). 6. One consequence is that the same good can have more than one owner. 7. Since ownership is a right (or a set of rights), it cannot be treated as a two-place relation between an owner and an object of property, but instead as a three-place complex social relation between an owner, other people, and an object of property. As a conse quence, nobody can hold ownership of anything in a desert island, even though nobody on such an island can have any problem in having power to use something. Nobody indeed can have rights in a desert island, for rights are established by rules and, if Wittgenstein is right, there can be no such thing as a private rule (See Wittgenstein 1953, §188ff.). 8. Uses of the umbrella of the same kind can obviously be allowed or not depending on whether they are made by one or another person, at one or another time, in one or another place and so on. INTELLECTUAL PROPERTY AS A KIND OF METAPROPERTY 413

9. One may find oneself wavering between the idea that the owner must prohibit a certain use of what is owned in order for that use to be illegitimate and the idea that it is enough that the owner does not allow that use. Likewise, one may waver between the idea that the owner must allow a certain use of what is owned in order for that use to be legit imate and the idea that it is enough that the owner does not prohibit that use. Prescription Downloaded from https://academic.oup.com/monist/article/93/3/395/1057694 by guest on 27 September 2021 seems to corroborate the former alternative in the case of the former uncertainty and the latter alternative in the case of the latter uncertainty. Perhaps, however, neither kind of un certainty can be resolved once and for all, regardless of what sort of good is specifically at issue. 10. See Dummett (1973), chs. 4, 16. 11. The definition uses as explanans the notion of copy. This is a complex notion and a philosophical treatment of it is not an easy task. Here I use the notion without attempting any explanation. Concerning the concept of copy in art, see Goodman (1986); also Carrara and Soavi in this volume.

REFERENCES

Dummett, Michael 1973. Frege. Philosophy of Language, London: Duckworth. Goodman, Nelson 1986. "A Note on Copy," The Journal of Aesthetics and Art Criticism, 44: 3-12. Quine, W.V.O. 1961. From a Logical Point of View, Cambridge, MA: Harvard University Press. . 1972. "Ontology and Ideology," in Feigl H., Sellars W., Lehrer K., eds., New Readings in Philosophical Analysis, New York: Meredith Corporation. Reinach, Adolf 1913. "Die apriorischen Grundlagen der biirgerlichen Recht," Jahrbuch fur Philosophic undphanomenologische Forschung, 1, 685-847 Searle, John 1995. The Construction of Social Reality, New York: The Free Press, Smith, Barry 2003. "John Searle: From Speech Acts to Social Reality," in Smith B., ed., John Searle, Cambridge: Cambridge University Press. Smith, Barry and P. Grenon 2004. "The Cornucopia of Formal-Ontological Relations," Di- alectica, 58: 279-96. Wittgenstein, Ludwig 1921. Tractatus Logico Philosophicus, London: Routledge . 1953. Philosophische Untersuchungen, Oxford: Basil Blackwell.