Jim Killock of the ‘Open’ ‘Rights’ Group (ORG) falls into the trap set by publishers in terming their 18th century privilege of a reproduction monopoly as a ‘right’ (omitting ‘legally granted’ to insinuate ‘natural’).

In his comment of March 10, 2010, 11:57:57, Jim Killock appears to believe copyright is a creator’s right and should revert to that individual artist rather than the record company that they signed with.

On the other hand, I can think of several instances where we’ve backed creator’s rights. In the term extension debate, we strongly argued that rights should revert to artists, not record companies, even within the existing term of sound copyright.

We also argue very strongly for a parody exception in copyright, which to our mind is a ‘creator’s right’, and much of the highly valuable comedy sector would benefit from legal certainty.

In our response to the P2P consultation, we argued that license deals were being blocked by the major rights holders (not the artists themselves), and this is depriving artists of the income they deserve.

I suppose Jim therefore believes that a ‘creator’ could sell their right to make a parody?

It is the right to make a parody that in some jurisdictions is suspended by the privilege of copyright. However, you can’t have it both ways. If you’re going to call copyright a creator’s right then obviously it already includes the ‘right’ to make a parody. So, why make an exception in copyright if copyright is already a creator’s right?

If copyright is a creator’s right then making an exception for parody because that really is a creator’s right seems to be redundant.

Jim is going to be very confused (as is ORG and its members) if it keeps on using the term ‘rights’ for both privileges and rights.

Here are a couple of clues to tell the difference between a ‘right’ and a right.

• If it can be sold, transferred and/or held then it is a privilege or ‘right’ as some confusingly prefer to term it (qv Rightsholder).
• If it is something that the individual is born with, that all individuals have equally, that like a shadow no individual can sell or otherwise be alienated from, then it is a (natural) right, e.g. the right to life.

Unscrupulous legislatures can of course still make laws to suspend an individual’s rights (derogation) in order to grant privileges, such as the granting of copyright and patent in the 18th century, and as ACTA requires to be granted in the 21st. Incrimination upon accusation?

I posted an explanatory follow up comment to Jim’s, but at the time of writing it has not yet passed moderation:

Jim, copyright is not a creator’s ‘right’ in the same sense as ‘right’ in ‘human right’. If it was a natural right instead of a legally granted right it would be inalienable and the individual wouldn’t be able to sell it to a record company. There wouldn’t therefore be any conception of it reverting.

Legally granted rights, or privileges, necessarily involve the state’s suspension of the individual’s respective natural right. So copyright (granted for the exploitation of the press) involves the state’s suspension of all individuals’ natural right to copy (even the musician has lost their right to copy their own music – they may choose to retain the privilege to do so of course, instead of selling it).

This is why ORG cannot claim to be about protecting the individual’s rights if it also attempts to protect privileges granted for the purposes of exploitation by manufacturers of copies such as record labels and other publishing corporations.

The right to make copies does not belong to the creator, but to the people – they are the one’s who’ve had their right suspended, and it is to them the right should revert, to be restored. That’s why a lot of people have the idea that copyright should only last a couple of decades – a commercially lucrative monopoly, at the end of which the public’s suspended liberty to make copies would be restored.

You’ve got to recognise the difference between protecting and restoring the individual’s rights, and protecting and reverting privileges attaching to original intellectual works.

Are you the Open Rights & Privileges Group, or the Open Rights Group?

And as Rob suggests, the ‘Open’ bit may need some attention too.

I’ve now added:

We’ve had copyright for such a long time that its proponents’ use of ‘right’ as a contraction of ‘legally granted right’ has conflated and corrupted the original 18th century meaning of right as a natural right.

The following excerpt from Wikipedia’s page on Thomas Paine’s Rights of Man seems to put the difference between ‘right’ and right most succinctly:

Human rights originate in Nature, thus, rights cannot be granted via political charter, because that implies that rights are legally revocable, hence, would be privileges:

It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few . . . They . . . consequently are instruments of injustice.

The fact, therefore, must be that the individuals, themselves, each, in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

Thus: The Statute of Anne, by annulling the (natural) right to copy (that is inherently in all the inhabitants), in the majority, leaves that right, by exclusion, in the hands of a few (copyright holders). The privilege of copyright is consequently an instrument of injustice – held in the hands of a few.

You cannot understand copyright in the 21st century in terms of ‘right’ because the term ‘right’ has itself become corrupted by the privilege it is now used to describe.