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Concepts of owning property (whether tangible or intellectual) and the contracts drawn up to regulate its use have taken shape in diverse forms throughout history. Examining property and contract practices of three groups—hunter- gatherers of the foraging (Paleolithic) era, agrarian “landed” communities, and industrial capitalist societies—demonstrates how property rights are closely connected with important values and structural aspects of a society.
Much contemporary political and popular discourse posits “property” as modern capitalist private property whose owner has the right to use the property, to exclude others from it (or regulate their use of it), and to alienate it. Private property is frequently seen as natural, desirable, or inevitable because it allows us to express or follow our self-interest, to do as we please with what we own, or to enact the final stage of a linear developmental history of which contemporary private property is the culmination. The history of property and contracts, however, shows that property has taken many different forms and a contract is but one type of exchange.
In thinking about the diversity of property practices, some important questions need to be asked. Who can own property? Private property can be owned by an individual person, a partnership, a corporation (a “legal person” in the eyes of the law), a family, a group, a tribe, or the state. “Common property” is open for use by a specific set of people, such as all townspeople. Sometimes not all individuals are eligible to own property: historically women (or married women), children, prisoners, and noncitizens have been disqualified.
What can be owned as property, in what ways can it be used, and can it be alienated (i.e., transferred by gift or contract)? Personal property, tools, shelter, and family burial grounds have frequently been owned by individuals or families, and in many societies they could not be freely sold but had to remain within the family, guild, or citizenry. Land uses have frequently been regulated, and sale prohibited. Some societies permit property in human bodies (children, wives, slaves), and others in human intellectual products, like written texts, songs, or cartoon characters.
Property practices are usually closely connected with important values and structural aspects of a society. The rules governing, and distribution of, property affect and reflect economic growth and decay, wealth and poverty, and political power and social status, as well as individual opportunity and psychological resources. Not surprisingly, then, property rights have been claimed, exercised, and contested throughout history with serious disagreement and often violence.
To explore the diversity of property and contract practices, it may be helpful to look at examples of property among hunter-gatherers, agricultural peoples, and industrial capitalist societies.
Property among Hunter-Gatherers
The earliest human communities were hunter-gatherers who lived primarily by hunting and gathering what nature provided, and sometimes also cultivating land. They lived in many parts of the world and, indeed, inhabit a few areas still. Contrary to standard myths, hunter-gatherers did have notions of property. For instance, Native Americans had understandings concerning personal (or individual), familial, and tribal property. A bow made by a male Huron was likely to be considered his, and the basket made by a female Iroquois to be considered hers. At the same time, material accumulation was relatively unimportant to a Native American, while traditions of gift giving were extremely important to building and maintaining the political structure of a tribe. For instance, the chief distributed food and other resources to the members of the group—in a potlatch, for instance—in order to assure their well-being and solidify his social and political dominance, and one chief hosted another chief, or allowed another tribe to hunt on his property, to solidify intertribe relations. Similarly, familial clans maintained usufruct rights to planting fields and hunting grounds, but they would not prohibit others from entering or even from obtaining nonagricultural foods.
In addition, every village or tribe understood what marked their territorial boundaries and those of neighboring tribes. These boundaries were fluid, as tribes frequently exchanged territorial rights. As William Cronon, a scholar of the American West, puts it, these territorial transactions were more diplomatic than economic: Native Americans did not treat land and possessions as commodities to be traded in a marketplace. So land transactions between Native Americans themselves—in comparison to transactions between Europeans—“had more to do with sharing possession than alienating it” (1983, 67).
Agriculturalists and Landed Property
Even from the earliest times some places seemed better suited for agriculture than hunting and gathering. Agriculture has a long history in the Fertile Crescent, China, India, and the Nile River valley, where property boundaries were established and, by sophisticated geometry, reinscribed after each flood season. Because one acre devoted to farming or domesticated livestock can feed ten to one hundred times more people than a hunter-gatherer acre, agriculture generated food surpluses and settled civilizations, frequently headed by kings, ruled by bureaucrats, and marked by laws, many concerning landed property. Because it constituted power, land frequently could not be freely bought or sold; because it needed to be cultivated, workers might be owned as slaves or tied to the land by unbreakable contract as serfs. Some critics, of whom Rousseau is perhaps the most famous, have argued that agricultural property leads to a rich and powerful upper class, a downtrodden (frequently owned) and unhealthy laboring class, more work for all, and periodic famines when a major crop fails.
Others saw in the fixed, landed property of agriculture the possibility and goal of community. During the later years of the Zhou dynasty (1045–256 BCE), after the age of Confucius, the famous philosopher Mencius (c. 371–c. 289 BCE) looked back nostalgically to the Golden Age of Sages when—he believed— peace, order, and equality abounded because the state had been founded on principles of equal land distribution. Hoping for the return of a similar age, he advocated the restoration of the “well-field” system of equal land holding. Thus, according to Mencius’s ideal and as the Chinese character suggests, each well-field was to encompass one li square, consisting of nine hundred mu. The well-field would thus be divided into nine equal parts, each consisting of 100 mu. From this, the eight peripheral plots would be given to eight families while the central plot would be owned by the state. Thus, all of the eight families would have to work the central, state-owned plot as a form of tax to the state. While Mencius believed such a system fostered equality, it did inevitably require a two-class system of “gentlemen” (magistrates, officials, and so forth) and “countrymen” (farmers). Even though most scholars doubt the historical accuracy of Mencius’s well-field system, it became a very popular model for later land reformers.
Similar visions—with a plurality of classes or social divisions—occurred in India and in medieval Europe, where the manor was the primary economic unit. The lord was understood to be the owner of his manor, and thus the peasants who lived on his land had to pay him rent by working on his land; peasants who farmed for a long time had effective tenure (or “copyhold”) to farm the land without being evicted by the lord, although the peasant could neither sell the land he lived on nor exchange it with another peasant or freeman. Mirroring the manorial system, feudal lords and vassals practiced fealty, in which a small lord would pledge his military allegiance to a greater lord in return for the greater lord recognizing and protecting his estate. Thus mutual obligations and duties bound together great lords, vassals, and peasants.
Trade, Global Expansion, and Capitalism
In China, medieval Europe, and most if not all agricultural societies, merchants engaged in trade. In classical Greece, Aristotle (384–322 BCE) distinguished merchant property from that of others in his Politics. Heads of households, Aristotle stated, exchange goods (and money) in order to buy goods to satisfy the household’s needs. Merchants, on the other hand, exchange goods in order to make money on the exchange; so the goal of exchange for merchants is profits. Within the limits set by laws, traditions, and religion, merchants bought and sold goods as commodities. Around the fifteenth century, European traders, with the support of their rulers, explored and expanded their trade, buying and selling commodities globally. With the development of commercial societies in England and Holland in the seventeenth century, land itself was coming to be seen not as inalienable by nature or tradition but as something that could be bought and sold; when these European societies colonized others, they brought with them and imposed their own ideas of property. As Locke stated, “in the beginning all the world was America,” waiting for Europeans to claim common or uncultivated land as their own private property or buy land from Native Americans who thought they were sharing its use.
European expansion since 1492 and the economic dominance of European countries like Great Britain and then the United States has meant that capitalist practices of private property and free contract have been imposed or adopted throughout much of the world. Sir William Blackstone, the leading British legal theorist, in the 1760s pronounced the absoluteness of private property as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe” (1979, 2), language that suggests individual control of the material world and freedom of action (and that ignores the state’s power to tax and to fund public goods). With the development of corporate capitalism in the twentieth century, much individual property is now held as shares of stock and other financial instruments, so control and action have devolved to corporate managers, and the individual shareholder has become an “almost completely inactive recipient” of income (Berle 1954, 30–31).
Many have criticized capitalist private property. Marx sought to abolish private property because it limited individuality and freedom, alienating individuals and subjecting them to impersonal economic laws, Proudhon because property as theft subverted justice. Other critics, like the American utopian writer Edward Bellamy in Looking Backward, thought that national ownership of property would produce a more efficient and equitable economy with more leisure time. Arguments about whether private property increases freedom, efficiency, equity, and justice can be expected to continue, and the twenty-first century will probably see some new debates about property linked to changes in global trade (as the “free trade” disputes expand to include, for instance, distorting subsidies for private agricultural property in the developed world), environmental problems (as property’s relation to ecological degradation is examined), and intellectual property in an information society.
Intellectual Property and Copyright
Copyright, an aspect of intellectual property, can serve as a good current example of ongoing contestations of and changes in property. The three major intellectual property rights—patent, trademark, and copyright— each protect different types of intellectual property in the United States. A patent grants an inventor the exclusive right (i.e., monopoly) to produce and sell his invention for a given period of time—usually a standard seventeen years. A trademark, which must be renewed every ten years, is a name, design, word, or cluster of words that signifies a firm’s identity to consumers: think of McDonald’s big yellow M, the “golden arches.” Copyright is an author’s legal right to control the production and distribution of her work— published or unpublished—for a legally established period of time, which has recently been extended to the author’s life plus seventy years thereafter.
Copyright protects an author’s expression, not his ideas or theories. That is to say, for example, Albert Einstein could never copyright his general theory of relativity because it was an idea, but he did possess copyrights for the books and essays in which he expressed the ideas of relativity. Although most authors register their work with the U.S. Copyright Office, one’s mere creation of a work is enough to establish one’s copyright over it. In most cases the owner of a work’s copyright is the work’s author, and the “author” is the primary creator of the work. The author may by contract reassign or sell his copyright to another party.
Copyright law has come under criticism recently for many reasons. As with laws governing many types of property, the law is subject to interpretation about what constitutes infringement of copyright. Currently, the U.S. Copyright Office defines infringement as any action involving the reproduction, distribution, performance, or making public of a copyrighted work without the express permission of the copyright owner. But one may be exempt from infringement charges if the reproduction is done by a nonprofit library, archive, or educational institution and is considered to be fair use. The boundaries between fair use and copyright infringement can be unclear or contested, for the law does not draw a clear line between the two.
Copyright law originally was intended to protect authors from having others copy and sell their work for profit. With the explosion of file sharing, “peer-to-peer” (P2P) networks, copyright law and its enforcement have changed significantly. Statutes such as the “No Electronic Theft” Act (1997) and the Digital Millennium Copyright Act of 1998 state that individuals who reproduce or distribute copyrighted material—even if they have no intention of profiting from it or are unaware of any harm they may cause—are subject to civil and criminal prosecution. The ninth circuit court of appeals in the case of A&M Records v. Napster (2001) reasoned that the Audio Home Recording Act (1992)—which exempted from prosecution individuals using digital or analog devices to make musical recordings for their personal use—did not apply to individuals who reproduced copyrighted works on computers, and hence peer-to-peer networks such as Napster. In particular, file sharing seems to be most commonly practiced by younger, cyber-savvy generations, and thus the Recording Industry Association of America (RIAA) has increasingly made peer-to-peer networks on college campuses the target of their lawsuits. In May of 2003, four college students settled a lawsuit in which they agreed to pay the RIAA sums varying from $12,000 to $17,000. While actions taken against file sharers have had some effect on file sharing, it remains to be seen how copyright law, the market, and file sharing will evolve in response to peer-topeer networks.
The new statutes have effects beyond file sharing. Because creators have copyright in their works, whether registered or not, and because many ordinary works lack a known or easily available public record of who currently owns their copyright, many works of culture from about 1920 are in a kind of limbo. They may be important or valuable culturally or as works of art; they may be disintegrating, as their pulp paper rots or their celluloid decays. But when, as is frequently the case, their ownership is unknown, no one will be willing to reprint or republish them—or even to preserve them in digital form—because of the possibility that the copyright holder will come out of obscurity and sue for infringement, even if the holder had no intention of preserving or publishing the work.
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