Are Patents and Copyrights Morally Justified? - Tom G. Palmer

846 HarvardJournal of Law & Public Policy [Vol. 13
the back, etc.), indicates that the work enjoys at least an intersubjective
availability. We do not say that we went to two different
performances, nor that we heard two different sonatas,
simply because our perceptions (or impressions) were not entirely
the same. The objectivity ofShakespeare’s Othello consists
in precisely this: that there is one Othello for all of us, rather
than one Othello for each of us, or even one for each of our
separate readings or viewings of the play.” 6
Each separate performance of Othello is a real event, and as
such is governed by property rights (the rights of self-ownership
of the actors, the property rights of the theater owners,
etc.), while Othello itself is neither a real event nor a real object.
While the work ofart does indeed originate in a definite time,
as Ingarden riotes:
not everything which originates in a definite time must
therefore be something real. . . , Every real object and every
real event is, above all, something which exists or takes place
hic et nunc. But. . . the categories ofhere and now cannot be
applied to the musical work and its content. . . . What is it
supposed to mean, for example, that Beethoven’s sonata,
Qpuc 13, is ‘here’? Where is ‘here’?” 7
The sameness, intersubjectivity, and objectivity of the work
are intimately related. Without a manifold of appearances—like
presentations and interpretations—the work cannot appear to
us as “the same”; without appearing to us as the same, it cannot
be intersubjective; and without intersubjectivity, it cannot
be objective. In the dialectic ofsame and other, we cannot have
the former without the latter; we cannot have “same” without
“other.” Thus, we cannot have the sameness ofa work ofart
116. This is what accounts for thenon-rivalrous nature of theconsumption ofworks
of art and other ideal objects; their enjoyment by one person need not diminish their
enjoyment by another. This also shows the difference between the concretion of a
work, like a performance, and the work itself. My enjoyment of a performance may
diminish your ability to enjoy the same performance, perhaps because I block your
view, but it does not exhaust or in any way diminish thework itself. It is for this reason
that ThomasJeffersondenied anynatural property right in ideal objects: “Ifnature has
made anyone thingless susceptible than allothers ofexclusiveproperty, it is theaction
of the thinking power called an idea, which an individual may exclusively possess as
long as he keeps it to himself; but the moment it is divulged, it forces itselfinto the
possession of every one, and the receiver cannotdispossess himself of it. Its peculiar
character, too, is that no one possesses the less, because every other possesses the
whole of it. He who receives an idea from me, receives instruction himself without
lessening mine; as he who lights his taper at mine, receives light without darkening
me.” Jefferson, Letter to Isaac McPherson, Monticello, August 13, 1813, in XIII THE WRIT-
INGS OF THOMAS JEFFERSON 826-88 (A. Lipscomb ed. 1904).
117. R. INGARDEN, ONTOLOGY OF THE WORK OF ART 85.86 (1989).