I was involved in a wee communication with God the other day, and He told me that actually I had it all wrong, that copyright and patent were wholly justified, had always had His holy blessing, and were pretty much in perfect accord with His almighty will. In fact, He said, He did have a couple of additional commandments that He hadn’t considered Moses would have been quite ready for at the time, but that He would happily pass on to me to convey to the world via my blog – noting that I must of course henceforth obey or face eternal damnation.

As you might expect, He still communicates via an archaic teletype in ‘all caps’, but here are His two commandments that relate to our holy inspiration for patent and copyright:

XI. THOU SHALT MARVEL AT ALL MY CREATION AND IN MY LIKENESS THOU TOO SHALT CREATE – THY DESIGN SHALL BE JOINED TO MINE AND ALL UPON EARTH THAT IS MADE IN ITS FORM SHALL BE SUBJECT TO THY WILL, FOR AS LONG AS THEE SHALL LIVE.

XII. THOU SHALT SCRIBE AND SHARE MY WORD, YET THOU MUST NOT SCRIBE, NOR SHARE AMONG A GATHERING, THE WORD OR GRAVING OF THY NEIGHBOUR WITHOUT HIS LEAVE, WHILST HIS BLOOD LAST.

So, there we have it. There are consequently quite a few ramifications for patent and copyright legislation.

Patent is thus supposed to last for the lifetime of the inventor, and is ‘first to invent’, not ‘first to file’. Moreover, it only applies to mortal creations, not the works of God, so at least DNA can’t be patented any more.

As for copyright’s term. This therefore endures until the author’s last remaining descendant dies (which could be a pretty long time, if not immeasurable). On the plus side, at least copyright is not permitted to apply to The Bible.

I did want to explore these ramifications with God a little further and query their feasibility, but unfortunately in a moment of white noise from a passing angel the carrier was lost…

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.

I thought this fairly straightforward exchange on Techdirt put things fairly succinctly:

Anon:

Why should consumers have rights regarding unauthorized file sharing?

CF:

Ahem, people already have the right to liberty (freedom of speech, etc.).

In 1710 (UK) and 1790 (US) the privilege of copyright was created to partially suspend this liberty, specifically the right for members of the public to make copies or derivatives of books that they had purchased. This ‘right to copy’ was then granted to publishers – hence the name ‘copyright’.

So, file-sharers are actually enjoying their natural rights.

Ideally those rights are no longer suspended for the benefit of publishers, but are fully restored to the public, by abolishing copyright.

Anon:

Copyright isn’t bad, in and of itself. The horrible way its been twisted and extended since its initial implementation.. is whats bad. Lets not throw the baby out with the bathwater here. I’m all for people being paid for work, I’m not for the idea of lifetime residuals on a piece of work and complete show stopping powers for derivative work. If people want to sign their rights away and open it up to the public without personal gain, well… thats what CC, GNU, and BSD licenses are for.

CF:

People aren’t signing their rights away, they’re restoring the public’s rights back to them (by neutralising their privilege of copyright to published works and derivatives).

It is actually impossible to sign one’s rights away – this is what is meant by inalienable.

It takes the power of a government to grant privileges that supersede individual rights.

I too am all for people being paid for their work. What I’m not at all for is the people’s liberty being suspended for publishers’ commercial exploitation.

David Durant via the Open Rights Group brings my attention to Glyn Moody’s post "Three Strikes and You’re Out" Struck Down in which Glynn quotes three salient paragraphs indicating the basis upon which EU Culture Ministers rejected a ’3 strikes’ Internet disconnection penalty for individuals who’d attracted allegations of copyright infringement.

The second paragraph caught my eye:

The EU Culture Council pushed yesterday (20 November) for “a fair balance between the various fundamental rights” while fighting online piracy, first listing “the right to personal data protection,” then “the freedom of information” and only lastly “the protection of intellectual property”.

It at least seems the EU Culture Council has some grasp of ‘fundamental rights’.

However, I wouldn’t have phrased it as a ‘fair balance’ between them.

Firstly:

• the natural right to privacy delimits the natural right to liberty, of individuals (and anything permitted to corporations).

Secondly:

• the natural right to liberty precludes the granting or instatement of monopolies that constrain individuals rather than just corporations.

Unfortunately, the EU Culture Council has a very weak grasp of the fundamental rights they appear to be referring to.

1. ‘Personal data protection’ is presumably a rather oblique reference to privacy and is liable to become confused with the misguided movement to confer unnatural copyright-like constraints over sensitive/personal data post-disclosure.
2. ‘freedom of information’ is probably a clumsy reference to ‘freedom of speech’ and is liable to become confused with the issue of government transparency.
3. ‘protection of intellectual property’ is actually a matter of securing natural exclusive rights and primarily concerns the right to privacy. It is commonly abused to refer to the enforcement of mercantile privileges that are granted to the publishers of intellectual works (copyright and patent).

The EU Culture Council would have done far better if they’d stated instead that “Whilst individuals’ privacy rights should remain protected, their right to cultural liberty, to exchange and build upon published works, should not be abrogated by the reproduction monopolies permitted to corporations”.

In other words, laws and regulations governing corporations can do whatever those who would meddle in their markets would like, but only as long as they don’t impinge upon human rights – especially privacy and liberty. Corporations should certainly not be granted monopolies that constrain individuals.

Unsurprisingly, it seems that corporations have a similarly indignant attitude, and believe that human rights are fine as long as they don’t interfere with their state granted monopolies.

So, who’s more important? Corporation or human being?

Which class of entity best keeps EU Culture Ministers in the life to which they would be accustomed?

We’ll find out the answers in due course.

A ‘rightsholder’ is a euphemistic term for someone who is privileged with the suspension of your rights and the commercial exploitation thereof, e.g. as in ‘testiclesholder’ (it is not their goolies they’ve been granted a grip on, but yours).

Thus those who are privileged with the holding of your right to copy or build upon the works of art you may purchase are known as ‘copyright holders’. This is because your natural right to copy was suspended in the 18th century to create this privilege of ‘copyright’. Your right to copy, like all natural rights, is supposed to be inalienable, but such wee technicalities may be pushed aside in the favour of commerce and those merchants who lobby so handsomely.

Let’s see how those who enjoy holding your rights like to allude to a vague justification for their privilege of doing so:

From Copyright.Com

How are “rights” defined?

Under the United States Copyright Act found at Title 17 of the U.S. Code, a creator of original materials is granted a package of exclusive rights, the entire package of which is generally referred to as the creator’s “copyrights.”

Ahem. No. A creator of ‘original materials’ is recognised to have an exclusive right to their work. Moreover, this right isn’t bestowed by a paternalistic state, but is recognised as natural and self-evident by an astute and percipient constitution. Rights cannot be granted. Thus this exclusive right, like any right, should not only be secured, but should remain underogated.

Most critically, ‘exclusive rights’ are not ‘copyrights’.

Copyright may well be a privilege that helps secure exclusive rights, but the privilege of copyright remains a suspension of others’ right to copy. In other words, copyright is not the right to copy but an abrogation of it. Therefore one cannot refer to exclusive rights as copyrights. This is unless, of course, one would like to confuse people into believing that copyright was a right and therefore supposedly natural and self-evident.

Anyway, while there may be many who would nefariously encourage the terming of exclusive rights to be ‘copyrights’ and who would also wish to cement this as the general understanding, those exclusive rights remain rights. They are not privileges, and nor are the privileges that help secure them therefore the rights that are secured.

• A constitution recognises rights.
• The legislative enaction of a privilege is a derogation of those rights.

Thus the US copyright act of 1790 shamelessly derogates the natural right to copy (part of the right to liberty and free speech) in order to bestow it as a transferable privilege for commercial exploitation by those who own printing presses – on the pretext that this helps secure an author’s exclusive rights (recognised by the US constitution in 1787).

Once again:

• Rights are imbued by nature and constitutionally recognised.
• Privileges are granted by kings and unscrupulous states.

So, an author has a natural exclusive right to their writings.

Whereas printers are granted transferable reproduction privileges (initially assigned to each original work). They are not granted ‘rights’, but the exploitation of others’.

“Hang on, hang on. So what is the difference between an author’s exclusive right and the transferable reproduction monopoly known as copyright that is automatically attached to an author’s original works?”

Good question.

• An author’s exclusive right is that they may naturally and self-evidently exclude others from access, communication, reproduction, performance, possession, or any other use of their writings, i.e. those in their possession created by themselves (privacy extends this to others legitimately obtained).

• Copyright is a privilege granting the holder with the power to prosecute anyone who reproduces or publicly performs a particular work (among other uses), i.e. the power to enforce the suspension of the public’s right to copy, to share or build upon the covered works of art in their legitimate possession.

Clearly, copyright helps protect an author’s exclusive right to their writings, but it remains an unethical privilege with far more power than nature originally provided an author.

Nature doesn’t imbue an author with the power to control what the public may do with the writings they give them, but with the power to exclude the public from the writings that the author has. This is also known as the right to privacy – the power to exclude the public from one’s personal space, one’s home and its contents. It is not the power to invade the homes of others nor to suspend their liberty to reproduce or perform published works – the public’s culture.

It is so sad that people will fight so fiercely for our immortal publishing corporations to retain their 18th century privilege of holding our family jewels, our cultural commonwealth, in the misguided belief that this is in our interest…

All rights inalienable, no privilege recognised.