These days, of course, one does not have to steal a document to get information. We have the remarkably useful fax machine. Not only have they given us another very useful word to get rid of the X in Scrabble (though some purists would disagree), they have given us the ability to receive information without having to steal a document.
The perplexing question is: can one “”steal” information? The question would sit as well in a Philosophy I examination as in a Criminal Law I or Property I examination.
The criminal law describes stealing as the taking away of property with a intention of permanently depriving the owner of it. Thus, before there can be a stealing there has to be property. Most people think of property as either land or something tangible that can be touched or moved. But our law recognises intangible property, too. The main rights are those over intellectual and industrial property: copyright, trade marks, patents, designs and trade secrets.
So the question, “”Is information property?” is not so dumb after all.
Different cultures at different times have recognised different property rights. The idea of individual property rights in land was clearly preposterous for nomadic societies. Similarly, individual ownership of intellectual property made little sense in the Middle Ages. The Church controlled and owned most of the intellectual output and the illiterate masses had no permanent form for their stories to which copyright could be attached.
In Britain, it wasn’t until the 15th century that individuals could get patents to protect their inventions. Until then, the Crown bestowed monopolies on favoured individuals for trade and the exploitation of inventions. The inventor, like the writer, didn’t get a look in. It was well beyond the 15th century before copyright became established.
Thus, the categories of property have widened, in real property (land), personal property (chattels or things) and intellectual property. In land rights have been numerous: easements to dig up drains or rights of passage, leases, covenants to enforce particular uses of the land and so on.
In intellectual property, authors are now claiming what are called moral rights, as well as copyright. This would, for example, prevent a film-maker making a film that perverts the plot or theme created by the novelist. For example the atheist H. G. Wells would have been mortified by a film version of the üWar of the Worlds that had God’s Will be responsible for giving the Martians the to-them-fatal common cold.
Should the ACT Government have the “”moral right” to prevent me from perverting their beautiful bureaucratese version of the health budget by hashing it up in journalese?
Another extension of intellectual property has been the right to protect industrial secrets. In the Ansell rubber case, Ansell had a secret process (and still does) that made rubber gloves. (Incidentally, a more recent application of the same technology has, pardon the pun, come into its own.) In that case, some former employees were restrained by the court from setting up a business using the secrets they had learned at Ansell.
Clearly, our law recognises some property right in secrets. That takes care of the Property I exam. We now have to wade into the Criminal Law I and Philosophy I papers. The question is: Can a secret, or secret information, be stolen?
In the Criminal Law exam, the test is the taking away of property with the intention of permanently depriving the owner. Clearly the information cannot be taken away and the owner cannot be deprived of it. It is just shared among more people. However, the secrecy element has been taken away, and the owner has been permanently deprived of the secrecy. Guilty as charged, Your Honour.
However, the Philosophy I exam must be of help. Leaving the law aside, the question is: who really owns this information about how our money is to be spent? If the Government opened the whole of the Budget-creation process we’d either all get bored stiff or we would have a greater understanding and sympathy for elected representatives who have to do the impossible. Surely we own the information. Can I steal what I already rightly own? Surely not. Anyway, the plod were not investigating a case of stealing but an offence under the Crimes (Offences Against the Government Act.
The Budget has now, of course, come down, so the teacup is calm. But it has been an interesting meteorological study, which may one day been applied to real storm.