Whenever I think about IP I find myself suffering from having one part of my brain considering the practical economic issues, another part working in abstract legal and ethical terms, and yet another part thinking about the practical writerly and interpretive issues.
For example, consider the notion of owning a character. In practical economic terms, I agree that it is useful to pretend that a concept plus description can be owned, in order that a writer be able to profit from supplying stories about that character. In economic terms I can see this working nicely as the sort of limited monopoly that, for example, patents offer, which allow inventors to recoup R&D costs and make a bit of a living.
In abstract legal terms, on the other hand, the notion of owning a concept strikes directly at something I consider a pillar of sensible and ethical practice: that ideas cannot be owned, only products. In these terms, only the specific words on a page can be an author’s property, and only direct copying of those specific words considered a violation of rights. Even a trademark, after all, that most ephemeral of intellectual property, must be a material, embodied symbol.
This touches on part of the writerly portion of my thoughts, because one thing I find curious is any author getting wound up over what another author does with “their” character.
As though it were the same character. Which, of course, it isn’t.
A character inside my head is not the same one as in someone else’s head. I might call it the same name, it might look a bit the same, but it isn’t the same character. No one can do anything to someone else’s character, because the only place someone else’s character lives is in that someone else’s head and on their page. The character in my head and on my page, that’s, well, someone else. The general agreement, in fandom and elsewhere, to pretend that all the Rukias, all the Leons, all the Rodneys we read are the same one, the shared fantasy of unity, masks this fact, I think. But the unity and the distinction exist side by side, and, in writerly terms, it is the distinction that I see most clearly. So the occasional diatribes about the “violation” of one’s characters being used by someone else seem to me to ignore some basic facts about how separate people with separate brains write.
It strikes me sometimes that many writers have a very poor sense of boundaries.
But, then, another part of my writerly thought understands, intellectually at least, that the emotional investment of writing leads very easily to a strong sense of ownership and identification. This part is entirely in sympathy with the desire to not know of the existence of stories that imagine other histories, other existences, for a character you wrote. It’s even more in sympathy with the wish to be clearly acknowledged as a source, and, if any profit is being made, to get a suitable share of it.
And that brings me back around to economic issues, and the search for viable models for licensing for commercial use. Alas, we have none yet, so this is where my thought process usually tails off into wild fantasies of a rational world.
When I try to imagine how all these different threads might actually be reconciled, that’s when I get irremediably tangled up. Practically speaking, it seems to me that the economic measure of copyright has dovetailed so neatly with emotional investment that the conjoining has become naturalized: people have started to think that copyright should protect the emotional investment and not merely serve as an economic incentive. This is certainly the direction European law seems to be moving in, witness the Berne Convention. I do not think it is a very productive direction; I do not think law should be based that immediately on emotion. But there it is, and it is certainly a fact that law changes and evolves over time, and someone will always not like it.
Which, now I think of it, probably means we’ll always be in this muddle. There will likely always be a huge middle ground that is ill defined and fuzzy. We’ll always be arguing over it from a slew of different, likely conflicting, perspectives. This is, after all, how rules are generated and laws are made.
So I suppose my conclusion today is, let us not try to quash any of these thought-threads in a vain effort to arrive at the One True Answer. Let us disagree and debate and not ever be ashamed to hold forth for what we each think is right in each moment and circumstance. The answer will change as we go exactly because no one of us controls it, and, all things considered, I can only think that this is a very good thing.