If two joggers wearing portable CD players meet, and one gives the other their CD of Barry Manilow’s Greatest Hits, and the other reciprocates with their CD of Cher’s Greatest Hits, then each jogger still has just one CD each.

However, if two basket weavers meet at a market, and each, in admiring the craftsmanship of the others’ work, agrees to weave the other a replica of the one basket they each have left, then they both end up with two baskets each.

So, clearly, with material handicrafts, exchanges are more productive, whereas with intellectual works and digital technologies they are not.

Well, this is the counter-conclusion to the frequently quoted George Bernard Shaw aphorism: “If you have an apple and I have an apple and we exchange these apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas.”

The point about sharing or communicating ideas is that it involves copying. We do not yet have the technology to manufacture copies of apples as easily as we may manufacture copies of baskets.

• Exchanging intellectual works, or ‘communication’, is typically accomplished by copying rather than movement – because copying is usually cheap.

• Exchanging material works, or ‘barter’, is typically accomplished by movement rather than copying – because copying is usually expensive.

An exchange simply means that two parties each perform an action as part of what is usually agreed to be an equitable transaction, where each party receives something from the other. Whether copies are produced in the exchange is coincidental, and simply indicates that productive labour took place rather than only transfer of property.

The only peculiarity of ideas (as opposed to any externally fixed intellectual work) is that while they may be copied (given comprehendable explanations), they are almost impossible to remove from the possession of their owners, except perhaps by induced amnesia or hypnosis.

So, apart from the inaccessibility of human minds, there’s no magic in communication (copying) vs barter (moving).

Given the absence of magic in copying, we can instead wonder at the motivation for quoting Bernard Shaw’s aphorism.

The quote is typically used to suggest that intellectual property is an oxymoron or that (given copying is facially productive) there can be no such thing as theft of intellectual property. For example, if you steal my one basket, I have no baskets, whereas if you steal a copy of my CD, I still have it. This is to misunderstand the wrong in stealing. The rights violation is not simply to diminish someone’s property, but to violate their privacy (property derives from the right to privacy). The logical remedy is to undo the violation, i.e. to return the material or intellectual work removed (including any copies manufactured).

Thus if you had instead burgled my private workshop to make a basket with your own materials that copied my new, secret basket design, despite no material theft this would still be stealing, i.e. theft of my intellectual work in my private possession, theft of my intellectual property, violation of an inventor’s exclusive rights to their designs. It doesn’t matter that you are productive in your act of stealing a copy you’ve made.

Just as it is invalid to say that productive theft cannot be stealing, so it is also invalid to say that infringements of privileges are stealing. If you buy a CD recording of a concert you attended and make a copy of what is your own property, you have violated no-one’s privacy. There can be no theft – whether of material or intellectual property. You may be infringing someone’s privilege (of copyright), but that is not theft.

As for the violation of exclusive rights (as recognised of authors and inventors by the US Constitution), this requires removal, communication or copying to occur across the boundary of a private domain (without the owner’s permission), although this can be abetted by further distribution of the intellectual property so stolen.

We should conclude that communication can violate rights in only the following ways:

1. It constrains another’s liberty (drowns out another’s speech)
2. It impairs the truth (deceives or misrepresents)
3. It commits or abets a privacy violation (distributes stolen IP)
4. It jeopardises life (incites violence)

Communication is the copying of information. Human communication is speech, and moreover the liberty to communicate is a fundamental right not only necessary for the individual, but also for cultural exchange. It cannot be abrogated to create a transferable privilege for the commercial benefit of printers. That said, immortal coporations having no rights may be regulated and subject to such monopolies if a government can demonstrate this as being beneficial to its mortal citizens.

Therefore, as long as no rights are violated, any copyright infringement that occurs in an individual’s communication cannot render their act unethical. Moreover one could say that such copyright infringement is ethical.

On the new a2f2a website Billy Bragg asks me “Why do you believe you have a natural right to share and build upon the published music you receive without having to seek permission, or pay any tax or royalty?”

To me this is akin to asking me why I believe the Earth is spherical.

It is not an unreasonable question, especially if we simply take what we’ve grown used to at face value as ‘the way things are’. Consequently, for the Earth to be flat doesn’t seem particularly unnatural. However, if you take any time to investigate things in depth, just as you realise that the Earth can’t possibly be flat, you realise that one can’t possibly have a natural right to prevent others making copies of anything that you give to them.

Just as a basket maker has never naturally been able to prevent those who purchase their baskets from making copies or using them to carry silver without a cut, so a songwriter or musician has never naturally been able to prevent those who hear their songs or tunes from singing or performing them, or doing so for money without royalty. It has always taken a potentate and their police force to do such things, e.g. prohibit the wearing of imperial colours or collect a levy on wine. Individuals naturally born as equals are not born with such a privilege of dictating what other people may or may not do with the things they have made, purchased, or discovered (irrespective of similarity to, or provenance from, any other). Even the power of collecting a tithe, levy, tax, or royalty takes the power of a church, baron, or king to achieve.

Natural rights are those powers or abilities to defend their interests that individuals are born with (as equals), i.e. the power to protect their lives (their bodies), their privacy (and the possessions within it), the truth (their apprehension of it against deceit or impairment), and their liberty (against the will of others). Rather than solely relying upon each individual’s physical strength these natural rights are supposed to be additionally and fairly protected by a government empowered by the people precisely for this purpose. Such a government is not empowered to grant privileges (though sadly, by dint of the power they can assume, they do anyway).

In 1710 Queen Anne suspended from individuals’ natural right to liberty their right to copy or perform the original works of others. This right to copy was reserved as a transferable privilege initially attached to each original work, hence ‘copyright’. In effect the individual’s inalienable liberty had been alienated from them by the state to serve both the state’s interest in seeing political expression controlled, and the interest of the stationers’ guild in continuing their members’ monopolies (especially as legally enforceable). Neither state nor guild was interested in their power or profits being undermined by the propaganda or piracy of an uncontrolled press.

Three centuries later, we are still born with the natural right to copy or perform the original works of¹ others, but there now exists a privilege known as ‘copyright’ that enables the holder thereof to exclude us from doing so. Government via the police protect our natural rights, but they do not protect privileges. This is why the police aren’t supposed to arrest people for singing songs against the copyright holder’s wishes or making recordings at concerts and selling copies thereof. The responsibility and expense of policing and asserting their privilege is entirely that of the copyright holder. Well, it has been until relatively recently. The publishing corporations are lobbying for their privilege of copyright to become as protected by the state as any natural right of an individual. Such privileges are also known as legal rights, since whilst they appear to recognise a right, that right does not arise in nature (to be protected by law), but arises only from the law itself (protecting the state’s, crown’s, or lobbyists’ special interests).

So, all discussion of the legal rights artists may still need or those that might remain lucrative to them, even if copyright’s ability to exclude unauthorised copies is largely ineffective, are misguided. Ethically, people can only ask for the protection of the natural rights they have, not those privileges they may covet or believe they need to make a living. They should certainly not be tempted to adjust one privilege into another, e.g. if one’s privilege is no longer able to prevent copies made by another, one should be given the privilege of extracting a royalty from another, if their business involves the use of one’s work.

The distinction of natural right from state granted privilege is not new thinking, but was well known even as the US Constitution was being framed in 1787. See the WikiPedia entry concerning the work Rights of Man by Thomas Paine:

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.

The US Constitution correctly recognised that authors and inventors have a natural exclusive right to their writings and inventions (where exclusive – deriving from the individual’s natural right to privacy). However, while this right should certainly have been secured, it should never have been extended or substituted with the grant of monopolies. It just goes to show how appealing monopolies are to those interested in them that they were legislated anyway (in 1790), in spite of the Constitution.

What we see today is that copyright is not only a privilege that conflicts with individuals’ natural rights (their cultural liberty and freedom of speech), but a privilege that conflicts with the very nature of information and its communication. It is simply not possible (even for the state, let alone an individual), to remotely constrain the distribution of intellectual works, because it is not possible to remotely constrain the communication and diffusion of information (despite the snake oil that is DRM).

So, it is foolish to suggest either that copyright’s term is shortened (to 28 years, 28 weeks, or even 28 days later), or that those whose business may be seen to benefit from the use of another’s work should pay a share of their earnings. Such privilege is preposterous and an offense against both nature and man. It is a protection racket of those already corrupt and powerful, or of those who have become corrupted by unnatural power.

We earn a living from our work by exchanging it with the work of others, voluntarily. Money=work. There’s nothing wrong in exchanging our labour, in selling the music we make or the copies we make of others’. What’s wrong is in being unnaturally able to prevent anyone else doing so, or being able to demand a royalty. What we have a right to is the free exchange of our work or possessions (liberty). We do not have a right to give our work away and then demand payment for its possession, use, or reproduction. Such a ‘right’ would be appealing, but nature has not seen fit to imbue us with it.

Without unnatural monopoly, we’re still left with the natural ability to sell our music, and the ability to make and sell copies of it. However, there is no market for copies that people don’t need to buy (that a monopoly can no longer prevent being made). The market for musicians is in making music that people want to buy (in preference to, or in addition to, making their own).

The market for copies has ended. The market for music continues unabated. There is neither need nor sanction for monopoly or any other privilege.

I and umpteen thousand others may pay you a penny to write or sing a song, and you may consider that an equitable exchange. However, my audience can also pay me to sing that song and I don’t owe you a penny – naturally. That’s how it used to be, and that’s how it should be. We just have the embarrassment of three centuries in which we put up with a state granted privilege that had it otherwise.

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¹ That’s ‘of’ as in ‘authored by’, not as in ‘owned by’. It is an unfortunate ambiguity of the English language that possessive prepositions and pronouns are used for authorship/paternity as well as ownership or physical possession, especially when there’s considerable interest in some quarters for the meanings to become permanently conflated.

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.

In order to understand the conflict between the publishing industry’s 18th century privilege of copyright and the emancipating cultural liberty of the information age, we need to understand copyright’s history.

But, more important than the history of copyright or the law that created it, we need to understand rights.

Here are some questions for those who have already started to question what they’ve been taught about copyright in school, or elsewhere by the media, music and movie industries, and want to understand.

What is the most important thing to know about rights?

Rights precede law.

Our rights are not created by law.

Our rights are imbued in us by nature.

We, the people, create law to recognise our rights, and create and empower a government to secure them.

What are our rights?

Rights are the vital powers of all human beings.
We have rights to life, privacy, truth, and liberty.

• We have a right to life, to protect the health and integrity of our minds and bodies.
• We have a right to privacy, to exclude others from the objects we possess and spaces we inhabit.
• We have a right to truth, to guard against deceit.
• We have a right to liberty, to move and communicate freely.

How then did government create a ‘right’ to prohibit copies?

No people creates a government to abridge, annul, or derogate from their rights in the interests of a few – or in Orwellian NewSpeak, the greater good.

However, a government is in a position to assume power beyond that provided to it by the people.

A government can assume power to derogate from the people’s rights in order to privilege a minority.

Indeed, these privileges, so called ‘legal rights’, are now so pervasive in society that we must qualify the rights we were born with as natural rights.

So, what is copyright?

What we call ‘copyright’ is an 18th century privilege.

It was granted by Queen Anne in her statute of 1709 for the ulterior benefit of the crown and its Stationers’ Company, so that the de facto printing monopolies established by the guild during its control of the press could become law.

The Stationers’ Company resumed enjoyment of its lucrative monopolies and effective control of the press.

The crown resumed its ability to quell sedition via indirect control of the consequently beholden press.

Why was this Statute of Anne wrong?

Privileges are unconstitutional, inegalitarian, and unjust.

Paraphrasing from Thomas Paine’s ‘Rights of Man’, the liberty and right to copy is, by nature, inherently in all the inhabitants, but the Statute of Anne, by annulling the right to copy in the majority, leaves the right, by exclusion, in the hands of a few – or, as we term them today, ‘copyright holders‘.

Consequently, copyright, as any privilege, is an instrument of injustice.

What is the consequence of granting copyright?

Copyright is now a cultural pollutant and has effectively created cultural gridlock. Today, individuals face jeopardy in any significant engagement with their own culture.

Morever, copyright fools the very same people into believing they have a natural right to control the use of their work.

Although we have privacy, the natural exclusive right to prevent others copying our work whilst it is in our possession, this does not provide us with the power to prevent others making further copies of what we give to them.

Such unnatural power is only provided by copyright, because that annuls everyone’s liberty and right to copy, leaving it in the hands of the copyright holder to restore by license.

Even so, to prosecute the privilege, to detect and sue infringers, can be very expensive, and tends to require the wealth and economies of scale of a large copyright exploiting publisher.

But then why has copyright lasted so long?

In the 18th century the press could be controlled.

In the last couple of centuries, when printing presses were relatively few and far between, the state and publishers, via their crown granted privilege, could expect to police and control the press.

Why can’t copyright work today?

Today, the press is us, the people

Today, we are all authors, all publishers, all printers.

We, the people, are the press.

To control the press is to control the people – a people supposedly at liberty.

What is the current approach to making copyright work?

The people are being ‘educated’ to respect copyright through draconian enforcement – severe punishments of a few as a deterrent to the many.

• 2005: Jammie Thomas-Rasset, 28, mother of 4, shared 24 files. Found liable for damages of $1.9m.

• 2005: Joel Tenenbaum, 22, shared 31 files. Found liable for damages of $675,000.

• 2010: Emmanuel Nimley, 22, iPhoned 4 movies and shared them. Sentenced to 6 months’ jail.

• 2011: Anne Muir, 58, shared music collection. Sentenced to 3 years’ jail.

• 2011: Richard O’Dwyer, 23, linked to sources of illicit copies. Faces extradition and prison sentence of up to 10 years.

Not only are publishing corporations trying to subjugate the people through extortion, intimidation, and fear, but the state is complicit, interested, as ever, in both pleasing their sponsors as well as quelling sedition.

Will we ever learn to respect copyright?

Mankind’s cultural liberty is primordial.

Our liberty, our natural right, our power and need to copy has never left us.

Our right to copy may have been annulled by Queen Anne, but youngsters are finding out every day that they innately possess the ability and instinctive need to share and build upon their own culture.

We will never learn not to copy, because to learn is to copy, and we will never stop learning.

Copyright is a historical accident, a legislative error made in a less principled era.

It is time to rectify that error, not the people.

Is that my mission then, to abolish copyright?

No.

Copyright should be abolished, and the people should have their liberty restored, but my mission is not to abolish copyright.

My mission is, and has always been, to answer this question: “How can artists sell their work when copies are instantaneously diffused upon publication?”

Or putting it slightly differently:

“How can artists exchange their work for money in the presence of file-sharing, which effectively renders the reproduction monopoly of copyright unenforceable?”

The solution is the question.

Artists must exchange their work for the money of their fans directly – in a free market.

Artists can no longer sell their work to printers in exchange for a royalty of profits on monopoly protected prices.

The monopoly of copyright is no longer effective.

Its artificial market of copies has ended.

So, what is copyright’s future?

Copyright is an unethical anachronism. It still works as a weapon with which to threaten or punish infringers (with or without evidence), but even with draconian enforcement, the monopoly has ended.

When privileged immortal corporations collide with a population naturally at liberty, the latter will prevail, however draconian their ‘education’ by the former.

Nevertheless, without copyright, natural rights remain, e.g. an author’s exclusive right to their writings, truth in authorship, etc.

Moreover, the market for intellectual work can continue quite happily without a reproduction monopoly. Indeed, it will thrive.

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Have more questions? See QuestionCopyright.org

Want more answers? See The Surprising History of Copyright and The Promise of a Post-Copyright World by Karl Fogel.

This article was previously published at ORG zine.

Further reading: The 18th Century Overture – A Crescendo of Copyright – Natural Finale and Reprise