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.”

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This entry was posted on Tuesday, December 2nd, 2008 at 6:08 pm by Patrick Ross and is filed under blogging, copyright law, copyright opponents, creators, economy, founding fathers, licensing, market forces, piracy, property rights. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.