Sat, 15 Jan 2005

Copyright and the Importance of Property

The recent fluff about Commonists[Less] has prompted me to commit my thoughts to electrons. I hope that as a reasonably high-profile programmer (aka. "Intellectual Property producer") with increasing exposure to legal issues (ie. Open Source, US-Australia Free Trade Agreement), they might be worth reading. I've commented several times in private that I feel this is not a Left vs. Right issue, and I think the current debate misses an important point because of the leftist political leanings of those involved.

Copyright allows the markets for easily copyable things to work like markets for other things. If you want to compete with my apple stand, you have to grow apples just like I did. If you want to compete with my autobiography sales, the printing press means you can do it much cheaper than I did, because you don't have to create the original. Copyright approximately makes my books "uncopyable" by others.

It's approximate in various ways: on the one hand copyright is for a limited term, but on the other hand, the barrier to entry is explicitly controlled by the copyright holder, who can set it far higher than they experienced themselves. Nonetheless, one valid aim of copyright policy is to make markets for copyable products more like other markets. This is really a very clever idea.

Generally the debate on copyright has concentrated on the new form of property created (the "copyright"), which is tradable and licensable, and this leads to a debate of "pro-property" copyright holders, and "communist" public commons supporters. This has largely missed the point, IMHO.

The first poorly understood point is that copyright on my work does not give me the right to copy it. It prevents everyone else from copying: a so-called "negative right". As an example, if you own the last copy of my autobiography, I don't have the right to make a copy: it's your property. You don't either: it's my copyright. If you destroy that last copy, my copyright still exists, but is useless. This illuminates something noone ever spelt out for me: that copyright is a weakening of property law. Normally when you buy something, you get all the rights the previous owner had: if you buy apples off me and sell apple juice in competition with me, I have no legal recourse. Copyright weakens property law by not transferring the "right to copy" with sale: that sliver of rights is removed from every copy and remains in the hands of the copyright holder.

Economists have eloquently argued the importance of property law in development and prosperity, and these arguments apply equally to works covered by copyright. Recent "copyright plus" laws which restrict what you can do with something covered by copyright, even if it's not copying, horrify normal people I've spoken with. Not being able to play a DVD using whatever DVD software you choose (important to Linux users) evokes responses like "But it's my DVD! I bought it! Sure, I can't spread copies of it, but of course I can play it!". People respect property laws because they identify with them, and undermining this seems an extremely risky social and economic experiment.

This model of copyright as a right taken away from property law is an important one for viewing copyright policy, because it leads directly to the understanding that copyright is a penalty system, not a reward system. The Nobel Prize for Literature is a reward system; it gives money and fame to authors. Copyright is different, in that it doesn't help authors directly at all: I could make copies of my own works without copyright law. It works by penalizing everyone else, giving me an advantage. This, then, is the lever governments have when dealing with copyright law: to increase or decrease the penalty system. It would seem obvious that the penalty system should rest on us as lightly as possible, while still achieving its goals. When copyright holders insist on "stronger copyright laws", they are directly arguing for a stronger penalty system for everyone else, and weaker property laws, which clarifies the issue.

The traditional focus on copyright, without considering the property which is its source, skews the copyright debate quite badly. Works which are no longer copyrighted are often said to "fall into the public domain">[Wiki]. This is a terrible phrase, which implies that property rights are being destroyed. We don't say that apples, which were never copyrighted, are "in the public domain". Or consider UK singer Cliff Richard's accusation that, as copyright expires, "every three months from the beginning of 2008, I will lose a song"[Econ], as if the songs will no longer exist.

When copyright expires, nothing is eliminated: full property rights are transferred back to those who own a copy of the work; this is a cause for celebration for those of us who believe in the power of free enterprise. And Cliff Richard fans.

Thank you for reading, and feedback is welcome,
Rusty Russell, Linux Programmer.

Lawrence Lessig Blog, January 6th 2005, "what a total (intellectual) disappointment this man is"
Wikipedia, January 15th 2005, Public Domain
The Economist, January 8th 2005, page 53 "Not-so-golden oldies".

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