It’s good to see Mike Linksvayer query what precisely is protected by copyright, and more importantly, from what and by whom.
Copyright should be understood as a transferable privilege, intended for printers, which accompanies an original intellectual work from the moment of its expression, that reserves the power to exclude others from reproducing the work to the holder of the privilege.
In other words copyright suspends this power (or natural right to copy) from the legitimate owners of intellectual works (and copies thereof) in order to grant it instead to a beneficiary preferred by the state. Copyright thus represents the state’s recognition of the copyright holder’s privilege over the public.
Copyright doesn’t protect an intellectual work from being copied however (though publishing cartels are predictably attempting to transfer such responsibility to the state). It remains up to the copyright holder to prosecute infringers and take action necessary to ‘protect’ their work from being copied by those who would copy it. Copyright simply means the state will recognise that the copyright holder should have the power to exclude others from reproducing their work. So copyright doesn’t really protect anything.
At most copyright could be said to enable a copyright holder to protect their unnatural reproduction monopoly from infringement (by the unprivileged public’s natural right to make copies). Even so, copyright only enables protection, it still doesn’t actually protect. And whatever that protection is from, it is ‘from being copied’, and by the purchasers of copies aka ‘the public’.
Publishers are thus supposedly encouraged to deliver far more of their artists’ intellectual works to the public if it is on the understanding that the public may be sued should they copy or build upon the copies they purchase, although they may at least enjoy, utilise, and learn from them.
Given reproduction and distribution are now effectively without additional cost, the age of the publisher is over of course, and it is now a matter of encouraging artists to deliver their work to the public directly, without encumbrance, and to enable the public to provide that encouragement to artists in the form of enthusiastic payment rather than state enforced suspension of their liberty.
Clearer Understanding
I believe a clearer understanding of powers and protections is obtained by seeing things in terms of natural rights vs unnatural privileges.
Natural rights are self-evident, inalienable, to be constitutionally recognised and protected by the state.
Unnatural privileges are enacted as commercial rewards or favours by the state in misguided pursuit of societal benefits, as they generally require suspending the recognition of individuals’ natural rights in favour of the invariably corporate party to be privileged with them (supposedly for a greater benefit to the party whose right was suspended).
Thus one’s natural right to liberty (to freely express oneself and to copy and build upon published works – as long as one doesn’t compromise truth, privacy, or life) is compromised to reserve the act of copying published intellectual works to the privileged party, i.e. the copyright holder.
Even worse is that one’s natural right to privacy (to exclude all, especially the state, from scrutiny, control, or seizure of materials from one’s private domain except where warranted in the protection of life or arbitration of privacy) is also compromised to privilege the copyright holder. Copyright makes it illegal even to make private copies of your purchased CDs, or to produce compilations or remixes.
Thus the fundamental difference between rights and privileges, is that nature provides rights, whereas the state provides privileges. Both involve power. The individual has the natural power to protect their life and their privacy. The community of individuals has the natural power to protect their consensus of the truth (against impairment by individual members). Liberty is the power of action that remains to each individual. The state is created to protect all, and not, as some believe, to grant unnatural power to provide favours or incentives.
Given that inherent to the right to life is that all lives are considered equal, no living individual may naturally dictate what another may do or not do within their liberty. If this is to be unnaturally obtained, then they must be granted a privilege to have this power over their fellows (such power provided by the state). Thus copyright grants those so privileged the power to dictate whether others may copy or build upon their original works, and patent grants those so privileged the power to dictate whether others may utilise their registered novel designs.
It should be noted that the US constitution does not sanction the granting of such privileges – if one understands that it only recognises natural rights, including privacy, the natural exclusive right authors and inventors can be recognised to have (which logically ends upon publication and the self-evident termination of their natural exclusive right). The constitution says the state shall have the power to secure its citizens’ self-evident, natural, exclusive rights, not to grant them unnatural privileges (however much they may enjoy them – at others’ expense).
Copyright may coincidentally help secure an author’s exclusive right to their writings, but it does not engage the state in the protection of that right, it instead creates an exclusive reproduction privilege – not only granted to private, naturally exclusive works, but also to published, naturally non-exclusive works.
Patent, in the case of ‘first-to-file’, doesn’t even protect an inventor’s natural exclusive rights to their designs at all, but only a time limited, exclusive utilisation privilege for ‘patented’ publicly registered designs. There’s no recognition of any violation of an inventor’s natural exclusive rights to their designs if through espionage these have been implemented and utilised by others whilst they should still remain naturally exclusive to the inventor, i.e. before they have been published or patented.
There may well be arguments in favour of creating the privileges of copyright and patent, but at least it should be recognised that privileges have been created. The exclusive rights that should have been constitutionally recognised and secured have not been, or have been only partially (and then coincidentally).
In conclusion, the privileges of copyright and patent are unconstitutional artifices of dubious merit at best, and unethical anachronisms reminiscent of monarchical excess at worst.
I believe it would be best if the privileges were abolished and the natural exclusive rights properly recognised and secured.
Copyright protects a creator’s right to reap the rewards for his or her own work. When applied to creations where the value created isn’t material (like books, music, etc.), that right requires the ability to control the commercial reproduction of their work.
Comment #000202 at
2008-07-22 19:23
by
I’m interested in this ‘right of a creator to reap the rewards for their work’. Such a right may sound appealing to some, but where does it come from?
From the natural rights to privacy, truth, and liberty, I can see that one can derive a right to free exchange – of labour or products. However, I cannot see how one can derive a right to forcibly collect usage fees from people who have enjoyed, exchanged, or reproduced art that an artist has produced and published ‘on approval’ as it were. I can only see such things as deriving from state granted privileges.
There are many who propose an Internet tax as a means to replace copyright, but neither system derives from any right of artists, but the commercial interests of publishers, and the interest of the state in exchanging its citizens’ liberty (freedom to copy) or labour (tax) to retain control of those publishers.
A tax has a chance, but I suspect the state will gradually realise there’s nothing to be gained by funding and controlling traditional publishers given they are rapidly diminishing in significance. The state may start wishing to control the Internet, but that’s a bigger fish to catch.
Comment #000204 at
2008-07-23 07:16
by
Crosbie Fitch
In the US, copyright is actually perfectly constitutional (http://en.wikipedia.org/wiki/United_States_copyright_law).
It’s true that it is recognised as a priviledge, not a right.
In dutch law, as far as i understand it, it seems copyright is considered a natural right.
In neither case however, copyright is a right or priviledge of the publisher, always of the author.
(Your comment form text box is tiny!)
Comment #000205 at
2008-07-27 01:52
by
It is nevertheless misguided to believe that copyright is an author’s privilege. Copyright is a privilege over an original work intended for exploitation by publishers – and hence a publisher’s privilege. Moreover it is only a commercial privilege – it provides no protection. It does not protect any interest an author may have in controlling the use, performance and reproduction of their work. If that was its purpose then it wouldn’t have been transferable, and the state would have protected the author’s ‘right’ to control the use of their work on the author’s behalf, i.e. copyright would have been policed and any violation of the author’s proprietary ‘rights’ would have been considered a criminal offence to be prosecuted by the state.
Of course, copyright being associated with a work, is initially in the possession of the author, but this doesn’t make copyright an author’s privilege. It is only that the author is the initial holder of a publisher’s privilege. This is because copyright is impotent in the hands of all but the most plutocratic of authors. It has always been expected that commercial publishers would assert their privileges of copyright, with the author only involved in selecting the publisher who would enjoy a privilege to their work (often in exchange for consideration or royalty).
The self-publishing author is a very recent entity that copyright legislation did not envisage. And such legislation also did not envisage a future in which readers would be the one’s who’d freely distribute and reproduce a self-publishing author’s works. Both parties without the means to assert or defend any reproduction or performance privileges, as unethical, ineffective, and redundant as we should recognise they are today.
As you point out, how copyright is recognised varies with jurisdiction. I focus on the UK and US. Jurisdictions that elevate copyright into a natural right commit a greater error and affront to nature, than granting copyright holders a privilege over others.
Apologies for the small comment form, but it is small to encourage commenters to compose larger comments offline, to then paste into the form – in case the form submission fails.
Comment #000206 at
2008-07-28 13:31
by
Crosbie Fitch
It’s good to see Mike Linksvayer query what precisely is protected by copyright, and more importantly, from what and by whom.
Copyright should be understood as a transferable privilege, intended for printers, which accompanies an original intellectual work from the moment of its expression, that reserves the power to exclude others from reproducing the work to the holder of the privilege.
In other words copyright suspends this power (or natural right to copy) from the legitimate owners of intellectual works (and copies thereof) in order to grant it instead to a beneficiary preferred by the state. Copyright thus represents the state’s recognition of the copyright holder’s privilege over the public.
Copyright doesn’t protect an intellectual work from being copied however (though publishing cartels are predictably attempting to transfer such responsibility to the state). It remains up to the copyright holder to prosecute infringers and take action necessary to ‘protect’ their work from being copied by those who would copy it. Copyright simply means the state will recognise that the copyright holder should have the power to exclude others from reproducing their work. So copyright doesn’t really protect anything.
At most copyright could be said to enable a copyright holder to protect their unnatural reproduction monopoly from infringement (by the unprivileged public’s natural right to make copies). Even so, copyright only enables protection, it still doesn’t actually protect. And whatever that protection is from, it is ‘from being copied’, and by the purchasers of copies aka ‘the public’.
Publishers are thus supposedly encouraged to deliver far more of their artists’ intellectual works to the public if it is on the understanding that the public may be sued should they copy or build upon the copies they purchase, although they may at least enjoy, utilise, and learn from them.
Given reproduction and distribution are now effectively without additional cost, the age of the publisher is over of course, and it is now a matter of encouraging artists to deliver their work to the public directly, without encumbrance, and to enable the public to provide that encouragement to artists in the form of enthusiastic payment rather than state enforced suspension of their liberty.
Clearer Understanding
I believe a clearer understanding of powers and protections is obtained by seeing things in terms of natural rights vs unnatural privileges.
Natural rights are self-evident, inalienable, to be constitutionally recognised and protected by the state.
Unnatural privileges are enacted as commercial rewards or favours by the state in misguided pursuit of societal benefits, as they generally require suspending the recognition of individuals’ natural rights in favour of the invariably corporate party to be privileged with them (supposedly for a greater benefit to the party whose right was suspended).
Thus one’s natural right to liberty (to freely express oneself and to copy and build upon published works – as long as one doesn’t compromise truth, privacy, or life) is compromised to reserve the act of copying published intellectual works to the privileged party, i.e. the copyright holder.
Even worse is that one’s natural right to privacy (to exclude all, especially the state, from scrutiny, control, or seizure of materials from one’s private domain except where warranted in the protection of life or arbitration of privacy) is also compromised to privilege the copyright holder. Copyright makes it illegal even to make private copies of your purchased CDs, or to produce compilations or remixes.
Thus the fundamental difference between rights and privileges, is that nature provides rights, whereas the state provides privileges. Both involve power. The individual has the natural power to protect their life and their privacy. The community of individuals has the natural power to protect their consensus of the truth (against impairment by individual members). Liberty is the power of action that remains to each individual. The state is created to protect all, and not, as some believe, to grant unnatural power to provide favours or incentives.
Given that inherent to the right to life is that all lives are considered equal, no living individual may naturally dictate what another may do or not do within their liberty. If this is to be unnaturally obtained, then they must be granted a privilege to have this power over their fellows (such power provided by the state). Thus copyright grants those so privileged the power to dictate whether others may copy or build upon their original works, and patent grants those so privileged the power to dictate whether others may utilise their registered novel designs.
It should be noted that the US constitution does not sanction the granting of such privileges – if one understands that it only recognises natural rights, including privacy, the natural exclusive right authors and inventors can be recognised to have (which logically ends upon publication and the self-evident termination of their natural exclusive right). The constitution says the state shall have the power to secure its citizens’ self-evident, natural, exclusive rights, not to grant them unnatural privileges (however much they may enjoy them – at others’ expense).
Copyright may coincidentally help secure an author’s exclusive right to their writings, but it does not engage the state in the protection of that right, it instead creates an exclusive reproduction privilege – not only granted to private, naturally exclusive works, but also to published, naturally non-exclusive works.
Patent, in the case of ‘first-to-file’, doesn’t even protect an inventor’s natural exclusive rights to their designs at all, but only a time limited, exclusive utilisation privilege for ‘patented’ publicly registered designs. There’s no recognition of any violation of an inventor’s natural exclusive rights to their designs if through espionage these have been implemented and utilised by others whilst they should still remain naturally exclusive to the inventor, i.e. before they have been published or patented.
There may well be arguments in favour of creating the privileges of copyright and patent, but at least it should be recognised that privileges have been created. The exclusive rights that should have been constitutionally recognised and secured have not been, or have been only partially (and then coincidentally).
In conclusion, the privileges of copyright and patent are unconstitutional artifices of dubious merit at best, and unethical anachronisms reminiscent of monarchical excess at worst.
I believe it would be best if the privileges were abolished and the natural exclusive rights properly recognised and secured.