There’s been a lot talked about copyright recently what it is, what it isn’t, and I want to use this post to examine what I think it is.
A little potted history first. The idea of copyright arose initially in the 16th century with the advent of a new technology: the printing press. This was a revolutionary period in terms of content creation. What had previously been the province of the individual scholar hand-copying documents suddenly became a lot easier to do and a lot quicker. This is the essential difference that the printing press made. And, in England, the right to print these was governed by the Crown, and this was used to censor and suppress material that the Crown felt did not benefit it.
Through Letters Patent, the Crown allocated certain works to certain printers and those printers enjoyed the exclusive right to make copies of those works. Then, as now, there was fierce competition among those printers and several rogue printers (also known as “pirates” by the industry) made unauthorised copies and sold them to a populace hungry for the words. The authorised printers got together and formed the Stationers Guild, a “union” of sorts, and compiled the Stationers’ Register, a list of all works that had been approved and who was authorised to print them. In that way, they managed to regulate their industry.
This was all done in the name of the publisher, not the author. Authors could not get a look in until the 18th century, specifically with the Copyright Act of 1710 (also known as the Statute of Anne). And even that document is heavily weighted towards publishers, despite its opening paragraphs. In total it mentions “author” 5 times while “proprietor” (including “proprietor or proprietors” as one mention) gets 10 distinct mentions, one where it is placed as deliberately separate from “author”.
In Europe, French thinking revolved around the moral right of the author rather than the economic rights of the publisher. This culminated in 1877 with the Berne Convention on copyright. While England became a signatory to the convention, it did not implement legislation to fully comply until the 1980s. The United States and other former colonies of the British Empire inherited, through common law provisions, the English approach to copyright as an economic entity.
Of course you can get all this from Wikipedia, and Google. You can also get the fact that the American publishing industry was a “pirate” of European works from the 18th century to the middle of the 20th, but that’s another blog post.
But knowing how copyright came about doesn’t fully inform us as to what it is, here in the early 21st century. If we look at the language of the Statute of Anne, and the relevant bit of the US Constitution, we see a significant mention of time: copyright was only ever intended to apply for a limited time, and it was to encourage more output, not reward existing output. The idea was not that you’d write one book (for example) and live off that forever, but that the revenue from that book would finance your life while you wrote the next one.
That’s a very important point that seems to be lost on the copyright absolutists, who tend to regard copyright as a property right, because some have referred to it as “intellectual property”.
It isn’t property in the same way that your house is property or your car is property . It’s possibly more like your cat, which is only your property in your mind.
Copyright is a social contract: it’s a contract between the creator and society. The creator gets control over the use of any revenue from the work that they create. For a limited time. And that limit is important.
With every right comes an obligation. The obligation connected to the right to copy is to release it to society after that fixed limited time.
More in my next.
17 Comments
the term “intellectual property” is intentionally misleading. partly it contributes to confusion between copyrights, trademarks and patents, which leads people to feel confused. also it’s misleading because, although the right can be transfered like a property right, it’s really a monopoly right. eg, one doesn’t have a right to the physical DVD or the movie that’s on it (at least not beyond normal property laws), one has a right to restrict others from manufacturing the DVD and conducting certain business regarding the movie that’s on it. the difference between “intellectual property” and “intellectual monopoly” is huge, and the reason we see one term and not the other is an intentional sleight of hand by the “rights holders”, aka “the record companies” and “the movie studios”.
Correct. Which is why I put quote marks around the term. I don’t like using it, myself, as it perpetuates confusion and gives ammunition to those who want copyright to last forever.
If a right imposes an obligation it isn’t a right it’s a reward.
And that is the case with the misnamed copyright, it is a contract, and one that needs to remain balanced.
“If a right imposes an obligation it isn’t a right it’s a reward.”
I don’t see what you mean by this.
If I have the right to cut down trees on a piece of common land, I have a responsibility not to a) block the road by cutting them down just any old way, b) cut the trees down sustainably (so that the land gives way through erosion. The reward is the revenue I might make from selling the lumber, or the heat from the fire when I burn the wood.
Likewise, the revenue from sale or rental (whatever) of copyright material is the reward, but that doesn’t have any impact on the obligation to release the material at the end of the copyright period. The fact that the law gives you no choice about it doesn’t lessen your obligation to release.
Mark
I recall once reading that revolutionary France did without copyright and over time it affected thei publishing industry. I haven’t been able to find a reference to that recently – have you seen it?
Colin
Mark, isn’t Hamish talking about an obligation being imposed on others, not on the rights-holder? The obligation not to copy, perhaps..
Sacha
Yes, I think you’re right. I meant the obligation on the copyright holder, not the audience.
The obligation/right pairing for the audience is to not illicitly copy something, and they will gain the right to use it freely after the copyright period expires.
Colin
Not up on the details of French copyright history prior to Berne, I’m afraid, so no, I haven’t seen it. I will, however, look… ;-)
Hi Mark,
Have you read The Public Domain? It is a good read and relevant.
cheers
Richard
For another view on copyright history, and relative benefit it brings for artists and publishers, the 1841 speech by Macaulay makes an interesting read.
http://www.kuro5hin.org/story/2002/4/25/1345/03329
Richard
Not yet, but it’s on my pile. Kim Hill had him on a while ago, I don’t remember the exact date.
I guess my point was that very often people who want to control your behaviour will assert that rights imply obligation. I believe in that case one is talking about contract rather than right. And I do hear copyright being described as a contract between creators and the public, exchanging the opportunity to copy for the incentive to create.
The other rights you describe are probably also contractual, in that you may take wood from the forest only if you etc. etc. Even Hardin admits these days that not every commons is an inevitable tragedy, we’re actually smarter than that. Who knew?
“The rights of man come not from the generosity of the state, but from the hand of God.”
President John F. Kennedy speaking at his Inaugural Address in 1961
Copyright is clearly from the generosity of the state, and is perhaps ipso facto, not a right.
With respect to the failure of the French publishing industry post the Revolution, I only ever heard of this from the mouth of the anti-christ, Jack Valenti. From that provenance I conclude it would be either a misrepresentation, selectively presented or simply a lie.
Speaking of revolution, I think the recording industry is edging ahead of the marketing department of the Sirius Cybernetics Corporation in the “first against the wall” stakes.
http://en.wikipedia.org/wiki/Technology_in_The_Hitchhiker%27s_Guide_to_the_Galaxy#Sirius_Cybernetics_Corporation
PS. The Thomas Babbington Macaulay speech is highly recommended. There is another too. I’ts quaint the way almost all of the arguments of today’s copyright expansionists have been around… well, forever. Plus you can’t complain about a speech that uses “eleemosynary.”
Peter,
That’s an excellent speech! Thanks for the link
Hamish
Oh, come on. A “right” without a a corresponding obligation to use it responsibly is merely largesse, and not a right at all. We’re not talking about basic human rights here – we’re talking about a limited monopoly awarded and governed by a law. It’s called a right in the same way that a mortgage is so named, because that’s the language of the law. If you want to split hairs, you need a finer blade, my friend.
One oft-cited right is that of free speech (which doesn’t apply as a constitutional right in NZ, by the way). In countries which do respect it, even elevate it to holy writ, it comes with the obligation not to shout “fire” in a crowded theatre.
I suspect we agree far more than we disagree, Hamish, and we certainly agree on Valenti and Macauley ;-)
Update: James Boyle wasn’t on Kim Hill’s show – he was on Kathryn Ryan’s show on 13 February 2009
http://www.radionz.co.nz/national/programmes/ninetonoon/20090213
A fascinating post, Mark. I agree that the notion of intellectual property is misleading–it does not convey the sense that something has been created by the artist and that this creation is work. My relationship as a writer to my work is contractual and in this contract there’s also an obligation to recognise that the author is the one who has created the work: in other words, intellectual rights are connected to notions of honesty and authenticity as much as ownership: it is dishonest to take my words and claim them as your own labour.
Correct, Harvey. I’m not against copyright per se – on the contrary, it’s the basis for a number of things I support fervently, like the GPL and Creative Commons. I’m just against abuse of the copyright process, including ever-extending terms and such-like.
Here’s a question for you – over at PublicAddress, there’s a thread (http://publicaddress.net/system/topic,1694.sm?i=0#forum-replies – ignore the bits about the casino) where the text 2 speech aspect of the Kindle2 (and the Author’s Guild’s response) are being discussed. As a poet, whose works are often read aloud, what’s your take on the T2S thing?
There’s also another thread (kinda perpetual, really) where we’ve been arguing about copyright in general for what feels like forever (http://publicaddress.net/system/topic,1494.sm?i=0#forum-replies), although that one frequently gets diverted into music.
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