A lot of ink has been spilled over the years over copyright. Many of the arguments against copyright, however, start to sound the same; trotted out again and again no matter how often they are debunked.

Case in point — the following is testimony from Irwin Karp, in his capacity as general counsel of the Authors League of America, during a hearing on copyright law revisions for what would become the Copyright Act of 1976, nearly 40 years ago.

Karp, who passed in 2006, “was a tireless advocate for author’s rights and remembered by many for his work on the 1976 Copyright Revision Act and on the Berne Convention.” Here, he is testifying specifically about “sections 107 and 108 of the Copyright Revision Bill and the issue of ‘library photocopying’”, but his remarks are just as applicable to broader issues. Karp lays out the purposes of copyright law — including its important free speech function — and then moves on to tackle the most popular “anti-copyright” arguments — copyright is a “monopoly”, it restricts access to knowledge, it is merely a government “privilege”. It’s telling that in the past thirty-five years, copyright skeptics have done little to move beyond these arguments.

As the Supreme Court has explained, the Copyright Clause of the Constitution was intended to establish independent, entrepreneurial, self-sustaining authorship and publishing as the means of serving the public interest in securing the production of valuable literary and scientific works. In so doing, the Copyright Clause serves a second purpose — it implements the First Amendment’s freedoms to express and publish ideas, information, opinions and all manner of literary, scientific and artistic works. The First Amendment protects against restraints on these freedoms. But the Copyright Clause is the only constitutional provision which establishes a legal-economic foundation for exercising them. The Copyright Clause thus frees authors from the need for subsidization by the state or other powerful, institutional “patrons”, and from the restraints such support often imposes. And it was intended to sustain the existence of a diversity of independent publishers, who would give a wide range of viewpoints access to the market place of ideas.

The Supreme Court has emphasized that the Copyright Clause of the Constitution

“was intended to grant valuable, enforceable rights to authors, publishers, etc. without burdensome requirements; ‘to afford greater encouragement to the production of literary [or artistic] works of lasting benefit to the world.’”

The Court said that the “economic philosophy” underlying the Copyright Clause

“is the conviction that the encouragement of individual efforts by personal gain is the best way to advance public welfare through the talents of authors . . .” {Mazer v. Stein, 347 U.S. 201, 219)

Thus, the instrument chosen by the Constitution to serve the public interest, i.e., the securing of literary and scientific works of lasting value — is an inde- pendent, entrepreneurial property-rights system of writing and publishing. The Copyright Act establishes the rights which prevent others from depriving authors and publishers of the fruits of their labor. But it does not guarantee a fair reward, or any reward. For authors and publishers, both commercial and non-profit, must depend on income derived from uses of their books and journals to compensate for the talent, labor and money expended in creating them, and provide working capital for further publications. And as entrepreneurs, they must assume the ever-present risk that books and journals produced by substantial labor and cash outlays will fail financially although they make valuable intellectual contributions to the public interest.

We urge that Congress should not disrupt the delicate balance of this essential system. Carving exemptions out of the “enforceable rights” of authors and publishers does not serve the public interest. For although the resulting uncompensated uses may further the convenience or ambitious plans of some “user” group, they diminish or destroy the ability of authors and publishers to serve the ultimate public interest — to continue producing new works of lasting benefit. The publication of scientific and technical journals, for example, richly serves the public interest — but it is at best a marginal economic operation. Learned societies and others who publish them do not grow fat on their profits. Squeezed by ever-increasing costs and static circulations, publishers will be forced to close down some journals or not start new ones if they are denied reasonable compensation for uses of their articles in the new medium of systematic, library one-at-a-time reproduction. Periodicals and journals are neither immortal nor immune from the laws of economics. The process of attrition may not be apparent to library spokesmen, but it is nonetheless inevitable. Yet, while they are willing to make substantial payments to the Xerox Corporation, suppliers and library employees to provide users with hundreds of thousands of copies of copyrighted articles, they demand of Congress the privilege of denying the journal’s publishers any compensation. [Ironically, libraries pay the Xerox Corporation a per-page fee — a royalty, if you will — for each page of each article they reproduce].

THE ANTI-COPYRIGHT ARGUMENTS

It has become ritual for library organization and Ad Hoc Committee spokesmen to accompany their demands for new exemptions with a series of attacks on copyright, calculated to suggest that the author has no legitimate claim to reasonable protection for the work he creates.

THE “ANTITRUST ARGUMENT”

Library and Ad Hoc Committee spokesmen charge that a copyright is a “monopoly”, suggesting it offends the Sherman Act. This is not so. The copyright in a book is not a “monopoly” in the antitrust sense. It does not give the author control over the market in books, or the business of publishing them. His book must compete in the market place with the 40,000 other titles published that year and the hundreds of thousands still in print from prior years, including many that deal with the same subject. His copyright only gives him certain rights to use the book he created. The owner of a copyright only has a “monopoly” in the innocuous sense that all property owners do — each owns a collection of rights, granted by law, to use that which he has created, purchased or inherited.

THE “RESTRAINT OF INFORMATION” ARGUMENT

Library and Ad Hoc Committee spokesmen charge that a copyright places a restraint on information. This is not so. A patent prevents others from using the ideas it protects. A copyright does not impose such restraints. Anyone is free to use the ideas, facts or information presented in a copyrighted book or article. The copyright only protects the author’s expression, not the ideas, facts or information. Other writers can draw on them. Other writers are free to independently create similar (indeed closely similar) works; the copyright only prevents substantial copying of the author’s expression.

In Progress and Poverty, Henry George made this trenchant observation about copyright :

“Copyright . . . does not prevent any one from using for himself the facts, the knowledge, the laws or combinations for a similar production, but only from using the identical form of the particular book or other production — the actual labor which has in short been expended in producing it. It rests therefore upon the natural, moral right of each one to enjoy the products of his own exertion, and involves no interference with the similar right of any one else to do likewise . . .”

The Copyright is therefore in accordance with the moral law — (p. 411)

THE “MERE PRIVILEGE” ARGUMENT

To Library and Ad Hoc Committee spokesmen, it smacks of immorality to suggest that the author has a moral claim to copyright protection in a work that he created, that would not have existed but for his talent, labor and creative efforts. They charge that copyright is not “property” because the rights are created by statute, and that Congress is not required to pass copyright laws since Art. I, Sec. 8 “merely” says that it “shall have the power” to do so. But the phrase “Congress shall have the power” does not precede the copyright clause of Sec. 8 — it prefaces the enumeration of all powers granted to Congress, including the powers to collect taxes, borrow money, raise armies and regulate commerce. Obviously Sec. 8 intended that Congress would enact copyright laws as well as exercise these other vital functions.

Of course a copyright is property. Like all other property, it is “a creature and creation of law . . .” (73 C.J.S. Sec. 1, p. 145). Like all property, it is a bundle of rights granted by the state, through legislation or court decision Copyright is hardly the only form of property created by statute. Property rights in billions of dollars worth of land, minerals and other natural resources have been created by acts of Congress.

But there is one basic distinction. These other statutes grant individuals perpetual, exclusive rights in resources that belonged to the Nation; they take property from the public domain and give it to private citizens. The Copyright Act grants the author rights in something he created and that already belonged to him at common law; and within a short time, the Act takes his creation from him or his heirs and places it in the public domain. Henry George was right in saying the author’s claim to adequate copyright protection rests on “natural, moral right”. The common law recognized that right, holding that an author “has an absolute property right in his production which he could not be deprived of so long as it remained unpublished, nor could he be compelled to publish it.” (Ferris v. Frohman). And as the Register noted, these exclusive common law rights “continue with no limit even though the work is used commercially and widely disseminated.”

Library and Ad Hoc Committee spokesmen have not asked Congress to grant them an exemption from the property rights of the Xerox Corporation which would permit them to use its machines without charge to reproduce “single copies” of journal articles or other copyrighted works. Property rights in machinery is something that apparently wins their respect. But the copyright owner’s right to compensation for systematic library reproduction stands on equally firm moral and legal footing. And his contribution to the libraries’ copying operations is indispensable. Unless the American Chemical Society and other publishers can afford to continue producing their journals, the Xerox machines and libraries will not have articles to reproduce.

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16 Comments

  1. It was a fallacious argument then, resting on inaccuracies and misreadings, and it’s a fallacious argument now. But, yeah, reality based policy wonks keep having to respond to the same old same old.

  2. Irregardless of the number of words used to describe the reasons for or against copyright, there remains those who would oppose the legal, moral or ethical legitimacy of Copyright Law. Therefore, the fact of infringement remains a constant threat to those who create from those of an immoral, unethical and lawless character, people who move to disregard, dishonor and desecrate not only the law but the creator and the creation itself.

    • Scum. That’s what they are. Freehadists need to be burned at the stake like we used to do to pirates in 1600s.

  3. The quotes above are an interesting contrast to the musings of an Republican Study Committee (RSC) staff member who took it upon himself to natter about his views concerning copyright law in the form of a policy brief that was quickly withdrawn by the RSC. The usual cast of characters have, of course, jumped on it as if Moses himself brought it down the mountain.

    • The RSC arguments are interesting, actually, and not so easily dismissed, particularly as they dovetail in intriguing ways with arguments from the left. They’re not anti-copyright or anti-patent arguments– they are arguments that the continual extension of copyright and patent protections are antithetical to the stated purpose of such protections in the Constitution, which is the public good. This is acknowledged by Karp’s own testimony above: “and within a short time, the Act takes his creation from him or his heirs and places it in the public domain.” The key problem is that a short time is no longer a short time, and has extended far beyond any reasonable incentive to the creator– i.e., no one is going to produce *more* writing or music if copyright extends a 100 years after their death, rather than 25, or whatever. That extension serves primarily corporate and/or monied interests only, like so many of the modifications to I.P. law in recent years (and like many attempts by the rich in this country to subvert inheritance taxes, for instance– trying to bar any reversion of private wealth to the public good, no matter how many public protections or public efforts were involved in the creation of that wealth). Trichordist rarely touches on this, and hasn’t addressed the RSC report at all, which is interesting, although not all that surprising. Not that copyright protections should ever go away– but the debate about where and how to balance them is totally legitimate, and not as clear-cut as many on this site seem to casually assume.

      • Sorry, should say “Copyhype, Trichordist, and the like” never address it.

      • I, on the other hand, found the comments decidedly uninteresting because they were premised on a house of cards having as its foundation a misinformed understanding of copyright law and its history. Perhaps there may be merit to some of the writer’s opinion, but any such merit is lost by the absence of persuasive force associated with the paper.

  4. The main opposition to copyright starts where it threatens the freedom and openness of the Internet and the privacy rights of netizens. As the saying goes, your freedom to swing your fist stops at my face. This opposition will resist, sucessfully I think, the inevitable efforts the copyright industry will put forth to filter traffic, to install backdoors into encrypted traffic in order to filter it, and to outlaw encryption and anonymizing schemes like TOR. As netizens move to protect their rights to communicate with absolute privacy with their doctors, lawyers and family and friends, eventually everyone will be fluent in controlling their own encryption and all of this piracy will literally disappear. But hidden under the surface the industry will never stop the sharing, the benfits being too many and too great, economic, culturally, socially, for the giver and for the receiver, and perhaps even all of us benefit when budding musicians have unlimited music to learn from and writers have unlimited books to read. Fortunately, the impulse to make art and to share it is not related to what the artist does to feed him or herself.

    • I presume that should encryption become the norm, the extent of piracy will largely dissipate, unless, of course, someone is inclined to pass along the cypher key to the world.

      • Hi Pro Se,

        We should expect sharing to become invisible, but hardly to dissipate. Just as you will share a key with your family, a different key with your workplace (or several if you belong to multiple groups), so will you share a key with your classmates, a key with your golfing buddies, and so on.

        The trigger for most people will be when they get their first “strike” from their ISP.

        • Well, personal sharing is one thing, but if you examine what drives much of today’s piracy it’s profit. Megaupload was not in business as a public service, it was designed to profit from content theft. Most every website offering pirated content features advertising or subscriptions for high-speed downloads.

          True, you will never get rid of sharing, but getting rid of commercial piracy and its underpinnings (affiliate offers) will go a long way to diminish its impact.

          • i agree, but it isn’t good enough. the commerical sites esp google have good lawyer/lobbyists and abiguity on their side now I wouldn’t be against shutting all of them down, but it is hard…

            suing individual downloaders, is however quite easy.. there is far less needed to prove, all you need to do is hire some cash strapped college student to gather “IPS numbers” for you, these are like phone# of people on the internet, you sopena their ISPs and send letters enmasse for $$$$.

            i will use every trick in the book to get the pirates to pay, this is what I plan to do, you should too

    • if you have nothing to hide, you shouldn’t have anything to worry about

      • Hi bob,

        Thanks for your reply. Try this for a thought experiment. Copy all of your family’s documents, your company’s internal emails, and everyone’s browsing history to the cloud and then come back and post a link to it here. Not your VISA number or your passwords, if that’s a problem.

        Would you feel a little uncomfortable? I would. Heck, I don’t even want to put my name of this post, just in case one of my clients happens to feel differently than I do about this.

        We all have secrets. Certainly every business has secrets. And if we had any idea how easy is it for some to see our traffic, we’d all be using VPNs and TOR and be anonymous, too.

  5. There is something amiss in this piece. I want to point out, that the purpose of law is to secure our natural rights. Not to rewrite them.

    Taken from the Declaration of Independence 1776:
    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
    That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it.”

    The declaration already recognized where our human rights come from. They come from nature. Not the government. It is precisely because they already exist, that people recognized them and formed government with the intent to protect these rights, not to abridge them. Not to rewrite them.

    “It is not true that the function of law is to regulate our consciences, our ideas, our wills, our education, our opinions, our work, our trade, our talents or our pleasures. The function of law is to protect the free exercise of these rights, and to prevent any person from interfering with the free exercise of these same rights by any other person.” – This is from Bastiat’s The Law, one of the great political essays to emerge from the whole Continental world of the 19th century.

    The purpose of government is to secure our rights, not to rewrite them, not to destroy them.

    now read this short quote:
    http://sharingisliberty.wordpress.com/2012/09/11/what-rights-does-copyright-grant-to-the-holder/

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