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An Author's Exclusive Right · Sunday March 01, 2009 by Crosbie Fitch

Many people confuse ‘copyright’ with ‘exclusive right’ (as recognised by the US Constitution of 1787), and thus presume that copyright is both a natural right and constitutional. Some people even cite the constitution’s recognition of ‘exclusive right’ as equivalent to recognising copyright as a natural right, and so term this the ‘copyright clause’1.

There is also a misguided notion that the constitution can grant rights to US citizens, and that copyright is such a granted right. It can do no such thing, and did not, as it instead only recognises the natural rights that the citizens already have that they empower the government to secure2. Copyright is a mercantile privilege3, enacted after the constitution, supposedly4 to persuade authors to release their writings from the protection of their exclusive rights for the public’s benefit – by granting authors the reward of a potentially lucrative reproduction monopoly over their published works. Thus copyright is a privilege granted by the government – unconstitutionally.

Nevertheless, despite being a mercantile privilege, copyright both helps secure5 an author’s exclusive right to their (unpublished) writings and incentivises the author to publish them (given the monopoly).

To help clear up any confusion between ‘exclusive right’ and ‘copyright’, I will now explain what an author’s exclusive right is, and why it is natural and self-evident, and consequently able to be recognised by the US Constitution.

Exclusive Right vs Reproduction Monopoly

Secondary to a human being’s natural right to life, is their natural right to privacy. This is the individual’s natural interest and ability to exclude others from a space about themselves, their dependents, and their possessions, and from within their larger enclosures thereof such as houses. This space is known as the individual’s private domain, and it is from the individual’s right to privacy (to secure and exclude others from their private domain) that material and intellectual property rights derive.

There are three key mechanisms for obtaining property, which are:

  1. gathering (from one’s environment whether a natural resource or another’s abandonment)
  2. creation (physical or mental labour), and
  3. exchange (from receipt of purchase or gift).

In all cases private property is obtained by introducing objects into one’s private domain (each with a degree of intellectual and material component).

An author’s intellectual works that they fix in a physical medium, especially their original writings, are self-evidently the author’s intellectual property. These writings are what they have a natural exclusive right to, especially given that in the traditional case of writing they must first manifest under the private hand of their author’s body, and from thence to storage elsewhere within their private domain. It is up to the author whether they keep their writings private, exclusive to themselves, or whether they pass them on to others (either included in their confidence, or for public dissemination).

Thus, having the natural right to exclude others from their private domain, an author has the natural right to exclude others from any action concerning their private writings, whether reading, copying, performing, communicating, removing, destroying, or anything else. However, they only naturally have this right over the writings within their private domain. The author has no natural ability and consequently no natural right to control what others may do with the writings the author may have provided to them (whether by purchase or gift)6.

Unfortunately for US citizens, their exclusive rights to their writings, designs or any other of their intellectual works or property are rather poorly protected. Despite being constitutionally empowered to secure them, the state does not police and prosecute those who violate an author’s exclusive right to their writings – as it should (and as it does for their material property).

So, you may now see why I so often argue that it would be better if the unconstitutional reproduction monopoly of copyright was abolished (being intended for exploitation by the press), and was replaced by law that properly secured an individual’s exclusive right to their writings, designs, and other intellectual property. The constitution is supposed to be about equally protecting the natural rights of the individual in a stable and free society, rather than to be a means of privileging commercial corporations above them, to exploit them (irrespective of alleged societal benefits).

Thus ‘exclusive right’ is an individual’s natural intellectual property right that is not properly secured despite constitutional recognition, and ‘copyright’ is an unconstitutional reproduction monopoly that only coincidentally helps the wealthy individual (or their publishing agent) secure their exclusive right, but primarily rewards the publishing corporation at the expense of the people’s suspended cultural liberty.

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1 This puts the cart before the horse, given the constitution can only recognise the natural law that precedes it. It can’t recognise the subsequent US copyright law, because that must logically derive from the constitution and have its sanction (it cannot both inform it and derive from it). The constitution is also unable to recognise British copyright (of 1710, which also didn’t recognise copyright as a natural right).

2 From WikiPedia – Rights of Man:

Human rights originate in Nature, thus, rights cannot be granted via political charter, because that implies that rights are legally revocable, hence, would be privileges:

It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few . . . They . . . consequently are instruments of injustice.

The fact, therefore, must be that the individuals, themselves, each, in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

Government’s sole purpose is safeguarding the individual and his/her inherent, inalienable rights; each societal institution that does not benefit the nation is illegitimate — especially the Monarchy, the Nobility, and the Military.

3 Also perniciously termed a ‘legal right’ as some prefer, often dropping the ‘legal’ qualifier to insinuate it has equivalent standing to a natural right (which now tends to need such qualification given contemporary abuse of ‘right’ in place of ‘privilege’). One must thus be careful to distinguish between law made to protect natural rights and law made to grant privileges, i.e. especially such unethical ‘legal rights’ as copyright and patent.

4 It is more likely that copyright was created to benefit printers, coinciding with the state’s interest in obtaining leverage over the press.

5 Being a privilege rather than a right, copyright can typically only be exploited and enforced by wealthy publishers with their expensive reproduction machinery and sizeable litigation budget.

6 They may be granted the privilege of doing so, as a favour from a king perhaps, but that would be inegalitarian, as it suspends this liberty from all in order to reserve it as the exclusive privilege of the favoured subject (or their assigns).

Jim Bursch said 2662 days ago :

I’m interested in an example of poorly protected exclusive right in the U.S., and what would be a good protection.

Say, for example, that I am writing in my private diary at a coffeehouse, and someone looks over my shoulder and sees my brilliant prose and then blogs it for all the world to see. Is that an example of my exclusive right being violated, and therefore should be a criminal act?

Another issue that comes to mind is “expectation of privacy”. Is it reasonable for me, writing in my private diary in a public place to expect a level of privacy that should be protected by law?

Another scenario: A man enters my home with my permission, but without my permission he copies my diary and posts it on the Internet. I imagine that I have civil complaint, but not a criminal complaint. Is that what you mean by poor protection of an exclusive right?

Crosbie Fitch said 2662 days ago :

Given you are in a public place, and your pages are visible should people look over your shoulder, for which you have no physical barrier, then it’s doubtful that this could be considered a significant violation of your privacy. Perhaps this is more an impolite invasion of your personal space? On the other hand if there is an overhead CCTV camera recording your diary that is then transcribed and published, perhaps this becomes significant? These are borderline cases in need of arbitration. One could say that recordings of personal spaces may only be made by persons present with those recording devices in plain sight and in the same positions as their eyes or ears – in order that people can distinguish between innocent reportage and being spied upon for purposes of IP theft or other significant privacy violation.

Anyway, I’m more concerned with privacy and an author’s exclusive right to their writings being a more ethical underlying principle in recognition of intellectual property than the commercial incentive of a reproduction monopoly.

If you permit someone to enter your home then anything not locked up is effectively made accessible to them, and they are free to publish it. The only constraint upon them here is their respect for your confidence in them and their discretion, and potential repercussions to their reputation should they be indiscreet or otherwise break your trust.

Protection of someone’s exclusive right is against theft/copying/communication of their works by unauthorised persons – persons that have not been made privy to their writings (specifically or implicitly).

For example, suppose you have a 200 year old manuscript and a burglar comes in and photographs its pages. Because the monopoly of copyright will have expired (if it ever applied), then copyright doesn’t provide any protection. You instead have to seek some other remedy. In some jurisdictions there are certain works not protected by copyright such as recipes, so if someone steals a copy of your secret cookie recipe even copyright can’t help you.

Even if you have a manuscript that you recently wrote yourself, if a burglar takes copies and publishes them you won’t get much help from the police in finding out the culprit (if they caused no damage and stole no material property), nor will they arrest them for copyright infringement.

So, yes, IP theft should be recognised to be as serious an offense as theft of material work. However, there should be no such thing as a reproduction monopoly – infringement of such is certainly not theft, despite publishers wishing otherwise.

We can police the boundaries of our private domains, but we cannot police others to ensure they do not make or share copies of the works they’ve purchased.

Jim Bursch said 2661 days ago :

Interesting.

Could one enter into a contract that constrains reproduction?

For example, could an author contract with a publisher to produce 100 copies of a work, and then sell those copies under a contract with the buyers that they cannot reproduce the work themselves? Or would this be akin to contracting oneself into slavery (which I presume can’t be done).

Crosbie Fitch said 2659 days ago :

Jim, without copyright, this cannot be achieved – unless slavery was legalised, i.e. people were once again permitted to alienate themselves from their natural, (and what should be) inalienable, right to liberty.

However, you could make non-copying a contractual condition, e.g. “Whilst you and your customers abstain from producing unauthorised copies, I’ll continue to supply new work to you at $5 per copy, however should I find unauthorised copies in circulation I’ll discontinue my supply at that rate, but will consider negotiating a supply at a higher rate”. Though such a condition is unlikely to be particularly effective or beneficial.

Jose_X said 2288 days ago :

I like your explanations. It’s a fairly consistent viewpoint. I also now find interpreting the Promote clause along these lines to be more natural (the meaning of the words seem less foreign and the overall intentions seem more consistent with the overall goals of the Founding Fathers, eg, as you mentioned here www.digitalproductio… ).

At least two things bothered me as I was reading your comments. The first is that you seem to skip the inventors/patent scenario. Does it make sense to talk about protect privacy in this case? The other difficulty I had was that “authors” frequently want to have their works be published. In particular, this would seem to be the case under the context of promoting progress.

Well, I’m glad to say that I think I have resolved the confusion: The securing (the helping to safeguard the privacy) should help promote progress by helping authors/inventors better protect their position of leverage (privacy) prior to making a disclosure to others and to perhaps have redress should that privacy be broken (but redress should not unduly burden others, eg, as you quoted from Jefferson, or fail to promote progress).

It would seem that laws aiming to fulfill this requirement would do things like, at the author’s option, require compensation or sharing of profits should a (eg) publisher make money off a work whose origin they claim they did not know but which turns out to have been a work taken from its author without permission. Also, you could insist on precise works being removed from further publishing, but it seems there is little that could be done to put ideas and anything else gained back in the bag. There could be stiff fines or jail time for those that were found guilty of exposing the works. Etc.

To specifically try to put the cat back in the bag by prohibiting the dissemination of ideas seems considerable overkill because of the attack on liberties. This is particularly true the more that other work differs from the actual literal writing that was exposed; the barring on idea reuse seems very unlike the intention of the Constitution anywhere, and is a sure way to hinder progress.

So it is good to see the Framers of the Constitution likely did not foolishly suppose that monopolies might be a good idea. Now, we just need to get back to the drawing board to help strike a balance that is actually fair to everyone and might conceivably promote the progress.

[BTW, I like the “uncopyright” share-alike like copyright license at the bottom of the page.]

Mark Proffitt said 2286 days ago :

Very well thought out.

I found your article from a comment about my article.

markproffitt.com/200…

Crosbie Fitch said 2284 days ago :

Jose_x, I don’t mean to skip the issue of patents, rather to focus on the more familiar issue of copyright.

Privacy is as relevant to designs as it is to works of literature. That mechanical and literary works occupy distinct industries and means of reproduction may give rise to distinct privileges (patents vs copyright), but the natural exclusive right to an intellectual work is unethically augmented by an unnatural reproduction monopoly either way.

It is industrialists that covet the monopoly, and a prosperous industry that attracts and sustains the parasite that the privilege of a monopoly is. Industrial progress does not result from monopoly, it gives rise to it. It is a convenient illusion of correlation that the inverse causation can be pretended. This is to claim that since patents paralleled the industrial revolution that such monopolies must have promoted progress (instead of progress promoting monopolies). Corporations, being without conscience or scruple, are driven by competition. The pinnacle of competition is to win the grant of a monopoly. Thus when corporations become sufficiently industrious and wealthy they succeed in lobbying for their ‘protective’ legislation. And, as others have observed, when a corporation’s products are no longer competitive in the marketplace, the corporation resorts to the legal weapon of their patents (as Dick Dastardly utilises underhand means to eliminate his faster competition).

Rather than design vs literature, a more fundamental distinction that can be made, is between material and intellectual aspects of works (formed/fixed in a physical medium). And this is simply due to our greater facility at reproducing and communicating information than matter. This could change in the future – if there was a matter replicator/telecopier it would be just as much a privacy violation for a burglar/telespy to make a material reproduction of a private work as a visual one. It is the unauthorised transgression of the physical boundary of the individual’s private domain that is the natural rights violation. Law should assist in the securing of this natural right of the individual, their privacy and exclusive right to their possessions, and the remedy of any violations that do occur, i.e. reversal, restoration, restitution, recompense, reimbursement. etc.

So, an inventor has as much privacy as a vintner, and a poet as much as a potter. None should have their material or intellectual works stolen. All have a natural ability and power to secure their works against burglars (unauthorised access, use, consumption, reproduction, removal, etc.) and consequently a natural right to exclude others from them. Whether comestible, craftwork, design, or literature all works must be recognised by law as private property and products that may be exchanged in a free market. And a free market is a market free of monopoly.

Individuals who create works will be interested either in disseminating them to promote themselves (their skill), or to market them, to exchange them for the money of those interested to receive them.

I appreciate that one cannot ‘put the cat back in the bag’ as it were. However, one can place some degree of embargo upon the dissemination of stolen works (and derivatives), to retain something very similar to copyright except that it applies solely to those works that can be demonstrated to have been stolen (obtained via burglary). This embargo would be automatically lifted the moment any of those privy (having authorised access) to the work decided to publish it (make it available to any person). There are some cases in which violation of privacy is warranted in protection of life, and thus embargoes would not be granted in such cases, e.g. upon the disclosure of secret test results that indicated a drug had dangerous side effects, etc.

Deterrents and remedies for privacy violation are wide open to debate in terms of justice and effectiveness, however, the principle remains that the government should help secure the individual’s natural right to privacy, their exclusive right to all discrete physical objects in their private possession, whatever the degree of their material or intellectual aspect.

Naturally, the securing of individual privacy does not impinge upon the liberty of the public, and that means no monopoly or other privilege should be granted, and any already granted should be abolished.

I think you’re right about going back to the drawing board. We do need to start sketching out what more ethical legislation would look like, i.e. with respect to the protection of all individuals’ natural rights concerning the possession, production and communication of information and intellectual works.



 

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