E&T on such controversial legal issues as ownership of thoughts, 'physical objects' and our own bodies.
The world's first copyright notice appeared almost exactly 500 years ago. At the dawn of the 16th century, Albrecht Dürer scored a success with The Life of the Virgin, a series of woodcut prints that took him the best part of a decade to complete. Much to his annoyance, almost as soon as he released his works, an Italian artist, Marcantonio Raimondi, turned out multiple near-perfect copies. He included Dürer's monogram 'AD' and sold his versions as originals.
Dürer lodged a complaint with the Doge's Court in Venice. Its ruling set a tone that we still recognise today: one of confusion between ownership of a physical object and the intellectual rights behind it. The court ruled that Dürer was the author of his own work, but did not physically own Raimondi's copies. Raimondi simply dropped the 'AD' from his prints and carried on selling them without further hindrance from the authorities.
In 1511, Dürer added a note to his book-bound issue of the Virgin series. 'Hold! You crafty ones, strangers to work and pilferers of other men's brains. Think not rashly to lay your thievish hands upon my works. Beware!' Give or take a word or two, this same curse is found everywhere today, from books and DVDs to the installation dialogue boxes in software.
The Dürer-Raimondi affair had a prescient conclusion. Traditional painters and draftsmen felt threatened by the printmakers, with their new and seemingly unlimitable technologies for mass replication, but the artists soon decided that their best hope was to embrace what they could not prevent. Raimondi made alliances with famous artists, and sold engravings based on their original paintings. His versions lacked the colour and fine brushwork of the originals, yet they brought affordable art to a wider public, while the original artists shared in the profits. Dürer and Raimondi eventually became friends.
As the French say, 'the more things change, the more they stay the same.' Modern movie studios and record companies look on in alarm while cheeky copyists bypass studio control over distribution. Just as the Renaissance masters discovered, tetchy legal responses cannot halt inevitable changes in technology. Clever artisans and engineers have spent five centuries devising ever better copying methods, and they are not about to stop.
Just as significantly, the public is firmly on the side of the copyists. A study conducted in 2009 by University College, London, commissioned by the UK government's Strategic Advisory Board for Intellectual Property Policy (SABIP) shows that today's generation simply doesn't care about copyright. When it comes to ownership of digital content, we are in 'a muddle of uncertainty about how to incorporate it into existing social and legal structures'.
The sovereign self
In an era dominated by information and intellectual ideas rather than objects, key questions of ownership are shifting onto nebulous and disturbing territory. To what extent do we own our bodies, our biographies or our 'selves'?
The late 17th century English physician and philosopher John Locke was an early champion of what we might recognise as liberal thought. In the late 1680s he expressed what would seem obvious to us today, aside from the paternalistic sexism. The individual 'has a right to decide what becomes of himself and what he does', he proclaimed. 'Every man has a property in his own person. This, nobody has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his.'
Unfortunately, there are pitfalls in the concept of self-ownership. For instance, if you consider yourself to be your own property, then you become a person who is wholly owned by a person. In law (for instance, under the US Constitution's 13th Amendment of 1865), this could be construed as slavery. On the other hand, the mere act of having a job entails selling your time and physical bodily presence to other people. By implication, you must own yourself in order to make such a transaction.
A mischievous logician would argue that it is impossible for the set of all things that are owned by an individual to include that individual as part of the set. More seriously, self-ownership implies a 'self' that is distinct from the 'body'. If you own yourself, which part is the 'you' that has sovereignty over itself, and which are the bodily parts that you might choose to harm with strong drink and piercings, or generously donate to another person?
Self-ownership raises controversial issues of mind-body dualism that are difficult to encompass in rational legal terms. Most scientists in the Western world do not acknowledge any difference between the physical stuff of our brains, and what we call the 'self'. Psychologist and broadcaster Susan Blackmore, Visiting Professor in the School of Psychology at the University of Plymouth, is by no means a scientific rebel in saying 'there are three interlinked issues here: self, consciousness and free will. I think they are all illusions. The temptation is to think that somehow there's an 'I' in the middle of the brain. But there isn't.' Consciousness obviously is a special phenomenon, but it is still a product of biological activity. Anyway, the brain isn't just that thing in your skull. It's a component of the nervous system as a whole. The mind and the body are part of the same thing, so how can one own the other?
Owning pieces of yourself
Problems of self-ownership reach their peak of complexity when it comes to the rights of a woman over her own body. Abortion laws vary widely around the world, as do the technical and legal arguments relating to the foetus. Another question is the extent to which we can own ourselves after death. Conventional wills allow property such as cash or houses to be passed to named beneficiaries, but this does not necessarily apply to the organs or tissues of one's own body: the physical lump of stuff that would seem to be the essence of what counts as self-ownership.
In 2008, a young British woman, Laura Ashworth, told her family that she wanted to donate one of her kidneys to her ailing mother. Laura died suddenly after an asthma attack and her wish was not granted. In the Western world, the medical profession balances the scarce supply of organs from post-mortem donors against the vastly larger demand from living patients. Adrian McNeil, chief executive of the UK's Human Tissue Authority, sympathised with the Ashworth family but insisted at the time, 'if we go down the path of saying you can direct who gets your kidney after death, what if that person's need is not as urgent as someone on the top of the waiting list?'
On the other hand, the popular British writer Sue Townsend had a life-saving transplant last year, courtesy of her son Sean, who was very much alive, and therefore permitted to choose the recipient of his 'spare' kidney, at least so long as no money changed hands. Sales of organs from living donors are banned throughout most of the world in order to prevent coercion at the hands of ruthless traders. Clearly, we do not own ourselves to the extent of being able to sell what we own. Others have dominion over certain aspects of our bodies, albeit for apparently noble reasons.
Are your molecules yours?
A more complex and less overtly visible debate centres on the molecular biochemistry of our bodies. Do those compounds define us, or are they merely contained within us? Genes are short, yet distinct sequences within our total DNA that define certain characteristics, such as bodily build, hair and eye colour, and even aspects of our temperament. Your genes are facets of nature, not human inventions, but their identification and analysis calls for expensive scientific endeavour which may, in turn, be someone else's property.
During 2006 alone, US companies spent $27bn on genetics research and development. The New Jersey-based intellectual property lawyer Robert J. Paradiso says: 'The development of biotechnology is unpredictable and expensive. Life sciences innovators need the patent system to recoup their investments and ensure a steady revenue stream for further research.' A licence costing a few thousand dollars provides swift and simple access to gene science that may have taken decades, and cost many millions, to accomplish, Paradiso argues.
The gene patenting debate precisely inverts the Durer-Raimondi problem. You become the owner of physical things, the chemicals of your body, but you do not necessarily own the ideas behind those chemicals, nor the rights to investigate or manipulate them.
In 1998 the United Nations General Assembly stated that our DNA is 'the heritage of humanity' and 'in its natural state shall not give rise to financial gains'. A year later, the Council of Europe declared that 'neither plant, animal nor human derived genes, cells, tissue or organs can be considered as inventions, nor be subject to monopolies granted by patents.' Fine words, but it is now up to the courts to decide the legal interpretation of such sentiments.
While our DNA as a whole may be sacrosanct, nothing yet prevents patent claims on brief fragments of it, so long as the relevant patentable procedures occur outside the human body. Basically, you own your genes, but not necessarily their interpretation.
As Dürer discovered, you don't necessarily own as much as yourself, or your life and actions, as you might think.