Critiquing Copyright Canards — Part Four of Five
Tuesday, December 2nd, 2008 by Patrick Ross
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Still plugging away at these copyright myths, but only four to go, two of them below. In the first post I addressed the canard that copyright stifles artists and that the purchaser of a work is the one with controlling rights. In the second I focused on the myth that copyright stifles innovation and addressed griping about creative industry business models. The third post tackled the issues of marginal cost of creative works and the call for collective licensing.
7. “Copyright is a monopoly.” Yes, but it’s not clear why that is bad. Stick with me here. The word “monopoly” has a sinister sound, and if Star-Kist were to suddenly gain a monopoly over tuna, I assume the Justice Department and the Federal Trade Commission would want to investigate, and rightfully so. (Although in “Forrest Gump” they gave a pass to Mr. Gump, who found himself with a near-monopoly in the shrimp business.)
When we say copyright gives artists a monopoly, that comes from Article I, Section 8, Clause 8 of the US Constitution, where artists and inventors are given “the exclusive Right to their respective Writings and Discoveries.” Note, the exclusive right is not given to someone over an industry; only to the work or works they produce. And it isn’t even truly exclusive there; the full clause says that it will be allowed for “limited Terms,” and we now have a statute that outlines fair use. If I write a poem I have a monopoly over it, but I have no control over someone else entering the poetry market and competing with me head-to-head, and I have no control over the price of poems in the market.
Those are the factors economists look at with monopolies, so in this sense the word has no meaning economically when it comes to copyrighted works. The word is merely used as a distraction by those who wish to flip the ownership relationship so that users control the use of works, not creators.
8. “Copyright is not a property right.”
Intellectual property, we’re told, is an oxymoron. Yes, a set of ones and zeroes is not the same as Grandma’s farm. But let’s look at some facts.
First of all, this debate didn’t begin with the advent of computers and the Internet. When you buy a novel, it is not the pieces of paper and the binding that are copyrighted, it’s the expression inside. That remains true when the book is turned into an e-book. So the idea of whether copyrighted works are property really has nothing to do with digital technology, specifically whether you can easily make another copy of a work and still have the original work in hand.
Copyrighted works are property because, like real property, the owners are in fact owners. Philosophically, you could adopt the thinking of John Locke (the primary philosophic influence of the Founding Fathers) and accept his notion that property results from what one does with the property, such as a farmer tilling the fields. That tilling extends ownership to land otherwise not owned. But the land already existed; a copyrighted work doesn’t exist until created by the artist, so one could argue under the Lockean definition an artist has more of a property right.
Yes, terms and fair use are limits on intellectual property rights. But are there not limits on real property as well? I have two easements running under my back yard; one for sewer and one for drainage. I can’t do construction over those easements without the county’s permission. There are numerous other things I can’t do without permission, from dumping toxic waste in my back yard to constructing a 100-foot statue of Jessica Alba in the front yard (actually, my wife would stop me long before the county got to me). The list of restrictions on real property, in fact, tend to be much longer than those applied to intellectual property. So I would say that real property is not as much of a true property as far as ownership is concerned as intellectual property.
I hope you can hang in there for the final post, part five of five, in which I examine the role of government as a copyright enforcer and the specter of “corporate greed.”
December 3rd, 2008 at 1:28 pm
“Copyright is a monopoly.” Yes, but it’s not clear why that is bad.”
The problem is that one collective body (MPAA/RIAA) are trying to dictate to the entire *world* how they can and can’t use something they’ve bought.
The world doesn’t work like that.
December 4th, 2008 at 3:46 pm
“Article I, Section 8, Clause 8 of the US Constitution, where artists and inventors are given “the exclusive Right to their respective Writings and Discoveries.”
WRONG. The Constitution doesn’t establish copyright, it just gives Congress the power to pass a copyright law. The contours of that law are up to Congress, and ultimately voters. Apparently Larry Lessig is not the only one who tries to constitutionalize the details of copyright law.
December 4th, 2008 at 4:19 pm
It states clearly why copyright is needed, empowers Congress to implement it, and Congress did in its very first Congress.
James Madison, the father of the Constitution, in Federalist Papers # 43 wrote strongly in favor of copyright and its inclusion in the Constitution, saying its “utility can scarcely be questioned,” it was a “right of common law,” and “the public good fully coincides” with copyright.
December 4th, 2008 at 5:11 pm
Yes, but the Founding Fathers did not contemplate a life-plus-70 term of copyright, statutory damages out of any conceivable proportion to harm suffered, and certainly not anti-circumvention (”picking the lock on your home library door is illegal.”) And these factors have a lot to do with whether a government-granted monopoly (you appear to agree that copyright is such) is good public policy or not. The devil’s in the details.
December 5th, 2008 at 4:56 pm
The founding fathers imagined perpetual copyright just like they were evangelical Christians, right Patrick?
December 7th, 2008 at 10:04 pm
I love seeing Patrick Ross weave one sensible, cogent argument after another and then reading the responses of people who simply wish to have free, unlimited use of songs and other artistic works.
Patrick is ringing a sobering warning bell over and over again - calling us to consider long-term effects.
Songwriters/composer/lyricists are geese who lay golden eggs. These golden eggs are special creations that have given great enjoyment to the world for enduring generations in a way that has increased the quotient of human life through musical expressions that delight and inspire.
Those who cannot lay golden eggs (geese or otherwise) yet want free, repetitive, unlimited access to those golden eggs are likely to ignore the uniqueness of the “golden” creations and are increasingly taking steps to cut off the food supply and life-sustaining resources of the Golden Geese.
The Golden Geese are not renewable resources - when these creatures have been completely undermined and nominalized, there is no way to “restock the tank.”
Picture a world in which no new generations of artists are being hailed and acclaimed. When the incentive for laying golden eggs (creative control, royalty) has been completely marginalized, and musical excellence is no longer rewarded, the Golden Geese will be driven completely underground (literally and/or figuratively). They’ll still lay golden eggs (they cannot NOT lay golden eggs), but folks will only find them sung round the minstrel campfires. We’ll return to the days of folk music.
December 8th, 2008 at 12:04 am
“I love seeing Patrick Ross weave one sensible, cogent argument after another and then reading the responses of people who simply wish to have free, unlimited use of songs and other artistic works.”
I have never, ever argued for that. But that’s the thing with the pro-copyright people. They’re so eager to distort the fact, they’ll openly twist the other side of the argument to make themselves look better.
January 21st, 2009 at 7:21 am
Re: Shippcal
IF that is the case (golden geese going underground due to copyright reform, which I find highly unlikely), and we return to the days of folk music - Well… You say that as if it would be a bad thing.
Remember that those folk musicians around the camp fire now can make their music available anytime, anywhere, to anyone in the world, not just the few sitting around their fire. For music, at least, the number of “folk musicians” in the world is enough for a supply of wide-ranging, high-quality music lasting 24/7.
Even if all golden geese (i.e. professional artists) stopped producing if we change copyright, which I find highly unlikely, every single one of us would still have access to more culture than at anytime before in the history of mankind. And we would have that access without loosing our civil rights, civil rights that the copyright industry right now is lobbying to remove, just in order to protect their business model.
March 17th, 2009 at 2:51 pm
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