Gripping scenes in a New York court this week, as famed Harry Potter author JK Rowling and her publisher are suing another publisher, RDR Books, to restrain publication of a reference book on the Potter novels – The Harry Potter Lexicon, based on an existing website.

So much for the argument that the purpose of intellectual “property” laws is to protect struggling writers and artists. There is something almost obscene in the spectacle of Rowling, who has become one of the wealthiest authors in history, trying to prevent someone else from making money out of the Harry Potter phenomenon. Further evidence that the law takes leave of its senses when it comes to intellectual “property”.

If copyrights and patents represented genuine property, none of this would matter. Being rich doesn’t deprive you of the right to have your property protected; we don’t declare open season on millionaires when it comes to burglary. And the vocabulary of the intellectual “property” establishment, with its talk of “theft” and “piracy”, is carefully crafted to make you think exactly that.

But it isn’t true. Property is a way of allocating scarce resources; the land your house is on can’t simultaneously be used by someone else.

You’re entitled to the sole enjoyment of the particular copy of a book you’ve purchased. But the ideas themselves can be shared indefinitely: your enjoyment of the Harry Potter books isn’t diminished by the fact that other people are enjoying them as well.

Previous generations were well aware of this. When copyright laws were established, it was understood on all sides that they were a privilege, a species of monopoly bestowed for a limited period in the public interest. Whether they continue to serve that interest is debatable. In reality, intellectual “property” is not sustained by authors and artists, whether struggling or successful, but by giant corporations who own their alleged “rights”.

Maybe special privileges to promote creativity are justified in some fields. But does anyone really think that some future creator will be deterred from their efforts by the thought that, should they hit the jackpot and become a billionaire, a lexicon compiler will come in and take a slice of the cake?

Rowling yesterday was not even speaking the language of social utility. It’s all about “rights”: “This case is about an author’s right to protect their creation”. But if it’s that precious to you, don’t sell your “creation” in the first place. For all the talk of “property in ideas”, claims like Rowling’s are claims to control actual physical things: the books that you’ve already bought and paid for, the electrons on your computer, and ultimately the neurons firing inside your head.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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