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Review: Rethinking Copyright by Ronan Deazley · Wednesday December 20, 2006 by Crosbie Fitch

Rethinking copyright does not so much rethink copyright as provide evidence of how the thinking of copyright has mutated over the years and has effectively become rethought. Only by implication does it really suggest that consequently the reader or society should therefore rethink whatever understanding they had concerning copyright – whether better to accord with its ancient instigators, or perhaps to reform it anew in a new digital age.

So self-evident has copyright appeared to me as a state granted privilege of monopoly (that publication is otherwise the delivery of unencumbered knowledge to the public domain), that I have been astounded to be introduced by Deazley to the revelation that there is a predominant legal thesis to the contrary – that all authors have a natural right to exclusive control of their work howsoever it is diffused in society, and that it is only copyright that suspends this natural right.

One might think that this was in order to sequester some benefit for the public good: that the author only enjoys a dilute form of their natural right for the specified term that copyright allows, and that thereafter their property rights to their work shall be wilfully abandoned from protection by the state in order that spoils may be left to the public.

So from this perspective you can imagine how ethically enlightened the state must appear in extending the term and extent of copyright back to the author as a closer approximation of their natural right – leaving less for the greedy public.

Deazley spends the first half of the book, chapters 1-3, presenting detailed detective work with considerable citation and reference to a well researched historical record in order to show that successive legal treatises have been so selective (I can only conclude as negligence bordering upon dishonesty and commercial bias), they have steadily transformed the well understood natural right of an author to their secrets INTO the author’s ‘natural right’ to govern the use of their secrets even after disclosure – and after they have clearly ceased being secrets.

So, Deazley reduces this contemporary deceit into successive distortions of meaning and interpretation throughout history, whether through imprecise language or wilful conflation, and presents clear evidence that if the law corrects each one of these thousand cuts that it will arrive at the more honest understanding that the law originally recognised copyright as a state granted privilege, and that the natural default was indeed that publication constituted a surrendering of any natural intellectual property rights.

It seems to me that there has always been considerable commercial pressure from printers to institute monopolies, even before copyright. However, this inclination is not enough to demonstrate a natural property right. The teller of a secret may well wish to restrict its circulation, but unlike physical property, a secret once told is transformed from the intellectual property of its owner into the property also of its recipients – as it inevitably becomes public knowledge. The truth of its authorship may be absolute and inalienable, but the control of its circulation and reproduction is lost.

One thing I missed, but I presume Deazley deliberately chose not to address, is how those actors circumscribed by copyright have effectively been transformed from a few printers, able but content to abstain from infringing copyright, into the many members of the public today enthusiastically engaging in it (with the tacit blessing of their peers).

Law that initially had little impact upon the liberties of the public, and had the public benefit at heart, is now almost completely occupied with measures to restrain the public’s baser instincts to compromise and damage publishers’ livelihoods.

History simply whizzes by, and it is as if the law was always written with the intention of indoctrinating our children as how best to respect each other’s ‘natural right’ to determine how their artistic endeavours may be exploited. This is presumably to compensate for nature’s failure to instil such an instinct or power.

Copyright now governs the individual. That it was once intended to govern a select few fortunate enough to own printing presses is a vestigial curiosity.

Deazley doesn’t attempt to judge the distortions that have occurred throughout copyright’s history – or those who have made them. However, he does provide a possible excuse for those culpable. He suggests that it may be an unavoidable consequence of how law evolves, not necessarily merely from precedent, but also from how precedent is observed, and in turn by how observations are interpreted – that law is an aggregation of interpretation perhaps as much as, or more than an aggregation of judgement. And, I infer, those who interpret may not be entirely free of prejudice.

The foundation Deazley so painstakingly arrives at is this: copyright is not, and never has been, a natural right to be protected by common law.

Conversely, the right of first publication, also recognisable as the right of disclosure or divulgence, is a distinct right accruing from the fact that private creations or secrets behave as any physical private property whether incorporeal/intangible or not. This has always been understood as protected by common law – irrespective of whether copyright also recognises it. That a secret may often be divulged or disseminated through the manufacture of copies is a coincidence that, perhaps because of linguistic ambiguity, many people have conflated with copyright – and probably precisely in order to confer the natural right to own secrets as a natural right to invigilate their strict circulation.

Deazley shows that many have argued that if a secret is valuable, it cannot possibly be sustained that if its value results from its interest to the public, that the moment of its publication must necessarily result in the complete loss of this value to its author. I use the word ‘secret’ to clarify my interpretation, as you’ll not find it mentioned in this book. All who claim a natural right for an author to retain the value of their work upon publication emphasise their self-evident natural right to the value of their labour, and that it is the duty of statute to protect this value. No-one is interested in taking any clues from the fact that it is only by this means that value can be preserved at all, i.e. that there is obviously no natural right.

In the second half of the book, chapters 4-6, Deazley begins the process of proposing at least better attention to language, if not its reformation.

He discusses the concept of the public domain, and because the public domain has now been enclosed by a vastness of copyrighted works (that some insist remain within their author’s private domain – despite publication), Deazley sees fit to invent a new term, the ‘Intellectual commons’, and what was once the private domain is now termed the ‘Undisclosed domain’. Published works now fall into overlapping ‘public domain’ and ‘copyright protected’ areas.

Deazley observes that the term ‘public domain’, being the set of works or parts thereof to which the public has liberty, is not so much a legal construct (perhaps intellectual property rights of the public), as a term that has necessarily been created to describe what the law omits to recognise as its subject. Deazley suggests that it may be useful to focus a little more attention in this area, especially with regard to terminology. Perhaps also, that the law fails to embrace the fact that authors’ ‘rights’ do not exist in a vacuum, and that what is reserved for the author’s benefit necessarily removes equivalent liberty from the public – and consequently intellectual property from the public domain, and the public’s benefit.

It seems that Deazley’s key act of sedition, by way of the author appearing over the parapet of the edifice he’s taken such pains to erect, is his proposal that terms such as ‘intellectual property freedoms’ and ‘intellectual property privileges’ are more accurate, less liable to confusion (and misrepresentation), and are more honest with the historical record than arguably pejorative terms such as ‘intellectual property rights’.

And all the while, with a title such as ‘Rethinking Copyright’, I had been expecting the build up to an accusation that the emperor had no clothes…

I have argued in the past that intellectual property is an appropriate term per se, but only if one considers that one necessarily confers shared ownership of intellectual property when one conveys ownership in a copy (of its constituent information).

Thus, intellectual property may be privately shared (by contract), or publicly shared, through copying. It is the voluntary act of conveying the work without contract to a member of public that constitutes publication, given one thus surrenders any natural right to control further disclosure or reproduction by that recipient. Everything else (copyright and patents) that impinges upon this is an unnatural (and I’d say unethical) legal construct for the purposes of commercial expediency (originally supposed to be the public benefit).

I am not really sure Deazley is right that things will be improved by creating new, less ambiguous terms, than in attempting to reclaim original, or more honest meanings of existing terms.

I get the impression that Deazley is fearful to do anything except present all the evidence necessary to dispel any notion that copyright is a natural right. He appears to shy away from actually stating these conclusions, and when mention is made of copyright being a monopolistic privilege, it is not his assertion, but at most his question.

Deazley does check the European convention of human rights, but I don’t think he comes to any clear conclusion as to whether it offers any opinion on whether copyright is a human right. From my reading, I think it rightly indicates that all should have an equal right to protection of any intellectual property they possess. It doesn’t specify what delimits IP, and certainly doesn’t require that humans have the exclusive right to control use of their authored works even after publication. If copyright is abolished tomorrow, I do not see any indication that the convention would require its reinstatement.

This book is a foundation stone upon which I suspect Deazley hopes further enlightened structures and propositions will be built. And whilst some may find the resulting archtecture an apparently radical departure from the present aesthetic, he lays the groundwork to demonstrate that it must actually be a more harmonious reprise of a classic tradition. Hopefully, Deazley lets reformers see where the bedrock of natural right ends and where the faux granite clad timber frame of privilege truly begins.

Another thing I felt the book might have covered a bit more concerns the overreaching nature of copyright. It doesn’t simply concern itself with copies, but also with derivatives. Copyright doesn’t only govern the reproduction of identical copies, but also, because of contagion by provenance, the derivation of new works. This may be in order to prevent a monopoly on perfect copies being circumvented by minor adjustment, but that seems to question the validity of the monopoly in the first place, rather than justify a prohibition on derivation.

There are also the strange differences between patent and copyright. Copyright protects by provenance, whereas patent protects by similarity. Patent embraces public enhancement, whereas copyright prohibits the preparation of derivatives. If these statutes arise out of natural law, why have they been interpreted to behave so differently?

So, why should you read ‘Rethinking Copyright’?

Well, if you need evidence that all is not as some lawyers would have you believe, then you’ll find it here. If you wish to understand how the present law has become such a distorted interpretation of its original incarnations you’ll have eminent pointers.

The biggest revelation for me was in discovering that copyright could possibly be considered a natural right. That in the absence of statutory copyright a stricter regime of a more absolute, natural copyright takes over, seems preposterous to me. However, Deazley gives the case of Naxos as an example where an old work, one might consider entered the public domain, conversely reverted into the protection of the ‘common law copyright’. It seems that it is only philanthropic observers of copyright law who infer that the term of copyright is intended to define the duration before which a work enters the public domain. On the contrary, copyright’s term only governs the period in which a work is subject to copyright’s jurisdiction – after that, all bets are off – the public domain is not recognised, let alone mandated as an inheriting beneficiary.

If you already thought copyright was crooked, this book will persuade you to rethink just how crooked it really is.

Otherwise, this book betrays the motives that give rise to the trajectory of copyright law that so conveniently and coincidentally follows the trajectory of technologies and actors that would otherwise threaten it.

And now, the ultimate threat, the public, threatens a law supposedly made for its benefit. Copyright vs the public – immovable incumbents vs unstoppable mob – not a pretty sight, but one we have to look forward to, and hopefully prepare for.

Inescapably, this book reinforces my suspicions that commerce has biased the evolution of copyright law, and strangely this does not persuade me that the solution to copyright’s conflict with the public lies in revealing this historical bias, but that providing a commercial solution will bias copyright’s reform, and may well be the only thing that can possibly achieve it. At best, the law is a product of well heeled philanthropists. Their less scrupulous successors are commercially financed lobbyists. The supposedly represented people can only revolt, although the Internet should facilitate a more peaceful collective action – such is my hope.

This book was well worth my time and I thoroughly recommend it to anyone wondering how so many lawyers can justify the inequity of copyright.

In Rethinking Copyright, Ronan Deazley does not so much challenge copyright, as demonstrate that it is a privilege that has been rethought as a right, rather than vice versa. It is on this foundation that we may then proceed to question the merit of such a privilege – for we cannot question rights. Let not the language favoured by commerce mutate privileges into rights in order to grant them immunity from challenge.

As the book’s subtitle indicates, history, theory, and language are all critically important aspects as far as copyright is concerned. Only after you apprehend them can you hope to apprehend copyright.

This apprehension begins with the laying of a foundation stone that consolidates the truth of copyright as a privilege. This is Rethinking Copyright.

Rethinking Copyright – History, Theory, Language
ISBN13 978 1 84542 282 0

Ronan Deazley teaches in the School of Law, University of Birmingham, UK

Hat tip: William Patry’s review: Why UK Scholars Eat Our Lunch

ICIF, London said 6183 days ago :

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