William Patry recently asked me in a comment on his blog:
Given the socially created nature of law, how can we speak of what is natural? By what criteria do you observe what the natural order of society is, and is it the same for all cultures and all legal systems?
I don’t think he (or perhaps his superiors) liked my reply for it was soon deleted (along with his and my preceding comments).
Primarily, natural law emerges from the natural power and inclination of the individual:
- to survive
- to secure (oneself, one’s family, home, and possessions)
- to collaborate or trade (honourable exchange of labour or possessions)
- to explore and express – freely
The natural law as enforced by a civilised society is then simply a matter of the society asserting egalitarian fairness over its members, i.e. giving everyone an equal, natural right to life, privacy, truth, and liberty.
Natural law is the same for all human beings, since we are all of the same nature.
Different cultures may well promote alternative views as to nature (discriminating according to gender, race, religion, bloodline, etc.), but then I would concede that egalitarianism is an unnatural human inclination when arbitrary power is so enjoyed by those who have it. We should conclude that egalitarianism and recognition of natural rights are marks of a civilised society.
One can also call natural rights human rights, and there is some degree to which a worldwide human rights movement is exerting pressure for all societies, cultures and legal systems to enshrine these and demonstrate themselves as truly enlightened civilisations.
So, getting back to the inegalitarian privilege of copyright that elevates the commercial interest of publishers above the liberty of the public to free cultural exchange, by suspending their liberty to produce copies or derivatives for ‘limited’ times…
If I sent a poem in a letter to someone in the new world, whether 50 or 300 years ago, I had no natural hope of controlling who they showed it to, whether they copied it, sold it, performed it, or improved it. Indeed, I’d have no expectation of any control unless they’d agreed to be subject to some constraint. Without such agreement, I implicitly and naturally surrendered control and ownership over the letter and the poem it contained. However, what I could expect, even separated by an ocean, is that as a soon to be civilised society, fellow honourable citizens would have zealously pursued the truth in all things including the authorship of the poem. Word spreads. And this is as it should be – not with a default law against unauthorised dissemination.
Since some great statesman had the bright idea of controlling the press by granting a privilege of exclusive reproduction (cunningly harnessing self-interested press owners to fund the control the state so desired), we now have copyright. An unnatural privilege given a veneer of dignity by grievously extending it beyond the press to a quasi-right that all men should enjoy the indefinitely limited suspension of all others’ liberty to communicate or incorporate their published artistic expression – on the more palatable pretext that, due to their high commercial value, such monopolies would encourage publishers to promote the arts (rather than prosecute the citizenry).
And today, if I sent a poem in a letter to someone in the US, they are supposedly to be prosecuted should they reproduce or perform it without my authorisation. However, I’m still likely to find that since poetry in private correspondence holds no appeal for publishers, it is unlikely to enjoy their eager enforcement of copyright’s protection – I certainly couldn’t afford to do this myself. I also still have no legal redress against the real crime of plagiarism – even after 300 years of feverish legislation concerning artistic expression.
Anyway, we are now faced with a cultural mess where much of the citizenry has been brainwashed into believing that they have a natural right to prevent anyone copying or incorporating their published work against their wishes. Unfortunately Creative Commons perpetuates this myth even as it at the same time provides a standard means by which people can assert otherwise (or only somewhat, if they still think they deserve some illusion of control over their peers – you can copy, but not if you profit).
The key thing about natural law is not that it has some kind of aesthetic superiority or represents a primordial diktat, but that it reflects the nature of the people – rather than the aspirations of social engineers who feel wise enough (reassuredly so by their lobbyists) to make social contracts on the people’s behalf. It is unnatural for a mere poet to have such power that he may reach out across the ocean and punish all and any scribes impudent enough to copy his great work. When all people have photocopiers, all people naturally copy with impunity. This is neither unfair nor harmful. When we have a global communications infrastructure dedicated to the task of efficiently exchanging human expression, this both reveals the diffusive nature of information and the nature of mankind in needing to share it. Those who persist in believing that reproduction of published works must be controlled to secure a mythical authorial right are fighting a losing battle for a cause greatly distorted from its 300 year old origins.
Hi, I find your opinion on copyright issues very interesting and unusual ( for me ). But this idea on natural law is not very concrete for me (are natural laws same for a hunter society and society of urban 21 century?).
But I would like to invite you to submit a paper to Communia workshop communia on Public Domain .
I see that you are very passionate and knowledgeable in copyright issues and would like to invite you to submit one page position paper in the Public Domain for the Communia meeting. If you send it to us we can present it in your behalf as we are organizing debates. Please see: www.ethicalpublicdom…
Thank you!
Kind Regards, Sasha Mrkailo
Comment #000159 at
2008-02-28 13:04
by
Hi Sasha,
I’m glad you find my blog interesting and unusual.
By Natural Law I mean a society’s egalitarian protection of its citizens’ Natural Rights (see wikipedia.org/Natural_rights) and fair adjudication of any conflict.
- Seek culture, but not at the expense of liberty
- Seek liberty, but not at the expense of truth
- Seek truth, but not at the expense of privacy
- Seek privacy, but not at the expense of life
- Seek life, and enjoy free culture
Natural rights are the same whether before or after the last ice age. What differs is how well any community or civilisation effectively recognises and protects these. Even today we have supposedly enlightened states who still retain a death penalty and resort to torture (drowning+resuscitation), let alone commit lesser violations of their citizens’ natural rights, such as unwarranted invasion of their privacy, and commercially procured suspensions of their liberty (patent, copyright).
There’s a heck of a load of work there when it comes to persuading people that human rights are not an irritant to society (often being misportrayed as a counter-productive aid to vagrants, paedophiles and terrorists) but its citizens' protection from each other, not least from their state and the corporations that fund it.
I’m just working on demonstrating that there’s an ethical way of incentivising authors and inventors to publicly express themselves in novel and original ways – rather than suspending everyone else’s liberty to share and build upon that expression. And that’s a big task all by itself – I probably don’t even have time to write position papers on the public domain. :-)
Thanks for your invitation. I will certainly consider it. I’d probably say the key practice that negatively impacted the public domain was copyright, wholly unethical and to be abolished at the earliest opportunity. I wonder if that’s too obvious and will simply paraphrase umpteen other papers making the same point?
Anyway, keep up the good work. It is a clue to the linguistic corruption in the legislature that there is an organisation dedicated to protecting to the public what few published works remain to it that aren’t ‘protected’ from the public by copyright.
Incidentally, I should point out that copyright legislation does not define nor recognise the term or concept of the public domain (although there is a brief, unwitting use of the term in a recent amendment). I suggest a better definition than ‘Unprotected by copyright’ would be ‘All published works available to the public’. I touch on this here in response to Terry Hancock’s recent article Promoting the Public Domain with Creative Commons’ CC0 Initiative.
Comment #000160 at
2008-02-28 15:22
by
Crosbie Fitch
William Patry recently asked me in a comment on his blog:
I don’t think he (or perhaps his superiors) liked my reply for it was soon deleted (along with his and my preceding comments).
Primarily, natural law emerges from the natural power and inclination of the individual:
The natural law as enforced by a civilised society is then simply a matter of the society asserting egalitarian fairness over its members, i.e. giving everyone an equal, natural right to life, privacy, truth, and liberty.
Natural law is the same for all human beings, since we are all of the same nature.
Different cultures may well promote alternative views as to nature (discriminating according to gender, race, religion, bloodline, etc.), but then I would concede that egalitarianism is an unnatural human inclination when arbitrary power is so enjoyed by those who have it. We should conclude that egalitarianism and recognition of natural rights are marks of a civilised society.
One can also call natural rights human rights, and there is some degree to which a worldwide human rights movement is exerting pressure for all societies, cultures and legal systems to enshrine these and demonstrate themselves as truly enlightened civilisations.
So, getting back to the inegalitarian privilege of copyright that elevates the commercial interest of publishers above the liberty of the public to free cultural exchange, by suspending their liberty to produce copies or derivatives for ‘limited’ times…
If I sent a poem in a letter to someone in the new world, whether 50 or 300 years ago, I had no natural hope of controlling who they showed it to, whether they copied it, sold it, performed it, or improved it. Indeed, I’d have no expectation of any control unless they’d agreed to be subject to some constraint. Without such agreement, I implicitly and naturally surrendered control and ownership over the letter and the poem it contained. However, what I could expect, even separated by an ocean, is that as a soon to be civilised society, fellow honourable citizens would have zealously pursued the truth in all things including the authorship of the poem. Word spreads. And this is as it should be – not with a default law against unauthorised dissemination.
Since some great statesman had the bright idea of controlling the press by granting a privilege of exclusive reproduction (cunningly harnessing self-interested press owners to fund the control the state so desired), we now have copyright. An unnatural privilege given a veneer of dignity by grievously extending it beyond the press to a quasi-right that all men should enjoy the indefinitely limited suspension of all others’ liberty to communicate or incorporate their published artistic expression – on the more palatable pretext that, due to their high commercial value, such monopolies would encourage publishers to promote the arts (rather than prosecute the citizenry).
And today, if I sent a poem in a letter to someone in the US, they are supposedly to be prosecuted should they reproduce or perform it without my authorisation. However, I’m still likely to find that since poetry in private correspondence holds no appeal for publishers, it is unlikely to enjoy their eager enforcement of copyright’s protection – I certainly couldn’t afford to do this myself. I also still have no legal redress against the real crime of plagiarism – even after 300 years of feverish legislation concerning artistic expression.
Anyway, we are now faced with a cultural mess where much of the citizenry has been brainwashed into believing that they have a natural right to prevent anyone copying or incorporating their published work against their wishes. Unfortunately Creative Commons perpetuates this myth even as it at the same time provides a standard means by which people can assert otherwise (or only somewhat, if they still think they deserve some illusion of control over their peers – you can copy, but not if you profit).
The key thing about natural law is not that it has some kind of aesthetic superiority or represents a primordial diktat, but that it reflects the nature of the people – rather than the aspirations of social engineers who feel wise enough (reassuredly so by their lobbyists) to make social contracts on the people’s behalf. It is unnatural for a mere poet to have such power that he may reach out across the ocean and punish all and any scribes impudent enough to copy his great work. When all people have photocopiers, all people naturally copy with impunity. This is neither unfair nor harmful. When we have a global communications infrastructure dedicated to the task of efficiently exchanging human expression, this both reveals the diffusive nature of information and the nature of mankind in needing to share it. Those who persist in believing that reproduction of published works must be controlled to secure a mythical authorial right are fighting a losing battle for a cause greatly distorted from its 300 year old origins.