The privilege of copyright has been with us for so long (since 1710) that we have come to expect its apparent ability to satisfy our desire to control what other people do with our published work.

Even Creative Commons perpetuates this notion, reassuring us mere authors (as opposed to our corporate publishing agents) that it is at our discretion whether we oblige attribution, collect royalties on commercial use, or govern how other artists may incorporate our art into theirs.

Unfortunately, this reframing of copyright as authorial prerogative simply transfers the mantle of corruption from baron publisher to king author.

The desire for such power may well be a human survival instinct, and commercially valuable if obtained, but in a civilised and egalitarian society power can’t simply be assumed, we need to know where it comes from. Is it inherent (a natural right) or is it unethically extracted from others (a privilege at the expense of others’ rights)?

1. What power do we actually have by nature as human beings?
2. Should we collectively invest power in our government to grant additional, superhuman power back to ourselves (some or all of us) in the form of mercantile privilege?
3. Even if not ethical, is the grant of that superhuman power by the state socially beneficial?

By nature, we can protect our lives and private domains, in concert we can defend the truth, and wilfully we can defend our liberty in all other respects against unnatural constraint.

We grant power to the state in order to protect our rights and those that derive from them.

We do not grant power to the state to grant privileges and boons to those it favours or would be favoured by.

Thus in terms of our intellectual works we should grant the state power to protect our exclusive rights, but we should not grant the state power to privilege our publishers (let alone authors) with reproduction monopolies over published works (however much some of us might hope to indirectly benefit from such a commercially lucrative grant).

The point of this post is to observe that even if one recognises that one has no natural ability to control what someone else does with the art that one has given them, and appreciates that the mercantile privilege of copyright should be abolished, one still retains a few niggling reservations that perhaps there may be some esoteric uses, some obscure situations, in which the power of the state should be brought to bear – to enable the artist to control certain uses in certain situations.

I’m interested to know what these certain uses and situations are.

In what circumstances would an artist sympathetic to cultural freedom wish to retain (even the illusion of) control over the use of their work, e.g. when posting their photos on the web?

Remember:

1. If it’s an unattributed use, then there’s no hope of control – even publishing cartels are finding it tricky prosecuting the public at large.
2. If it’s a self-publishing individual user willing to risk prosecution of copyright infringement (with no prospect of a ‘fair use/dealing’ defense), then the self-publishing artist must prepare a significant litigation budget.
3. If it’s a commercial publisher committing the infringement, then the self-publishing artist must be extremely wealthy, or able to obtain assistance from another publisher or comparable sponsor.

Aside from the privilege of being able to prohibit copies, what rights could potentially constrain use?

• Life: Your work cannot, or be used to, incite violence or hatred of individuals or a class.
• Privacy: Your work should not be used, reproduced, or distributed if it has been stolen (removed/communicated from private premises without permission). Your work should not violate the privacy of its subjects.
• Truth: The artist, their art and any subjects should not be misrepresented, nor falsely implicated, where this impairs the truth.

For example, manipulating a photo to misrepresent a subject as smoking a joint may be fine if overt parody or satire, but not if intended to deceive.

However, when involving taboos of sex or religion things can become a little more controversial.

Superimposing one subject’s head from one photo onto another’s naked body from another photo as a prurient amusement, may be reprehensible, disrepectful, offensive to the subject and their advocates, and bring disrepute to any publishers, but whether it violates anyone’s rights is likely to be highly dependent on the specific work.

Could it incite hatred of the subject or violence against them? Does it violate their privacy by induction? Does it impair the truth by subliminally objectifying the subject in the mind of the viewer?

Things can get tricky when you move from a clear and false implication to a highly viewer subjective, perception of insinuation.

This is why libel laws are highly questionable from a natural rights perspective.

Libel
2 a: a written or oral defamatory statement or representation that conveys an unjustly unfavorable impression b (1): a statement or representation published without just cause and tending to expose another to public contempt (2): defamation of a person by written or representational means (3): the publication of blasphemous, treasonable, seditious, or obscene writings or pictures

Unless it incites violence, violates privacy, or impairs the truth, I understand the concept of ‘freedom of speech’ (and suppose it should be commonly understood) to be speech legally unconstrained by considerations of reputation, obscenity, or other mental offense or anguish to persons or deities.

Fundamentally, the issue is not whether causing unnecessary offense or harm to someone’s reputation is despicable and reprehensible, but whether one has a natural right against it. I don’t know of any evidence that one does. One has no natural power to require that one’s peers discuss oneself only in a positive light and refrain from belittling or derogatory insinuation. One has to rely on opprobrium against unfounded criticism, contempt, and promotion thereof.

I’d be interested if you can give examples of situations or uses that artists should self-evidently retain control over, where those examples don’t involve a violation of the aformentioned rights (life/privacy/truth), nor aren’t simply pursuit of commercial advantage from reproduction monopoly.