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In Whose Interest Is Copyright? · Friday March 12, 2010 by Crosbie Fitch

It is sad that so many persist in thinking that copyright is a right created for the author, and a right that belongs to the author. It should be strange that it must be created for them, and very strange that they can sign it away.

As everyone should know, rights are not created – we are born with them. Privileges are created – through the derogation of the rights we already have. These privileges are like rights, but they are created through legislation, hence lawyers prefer to term them ‘legally granted rights’, ‘legal rights’, or simply ‘rights’. Because (thanks largely to copyright lawyers) the latter usage has now almost superseded the original, natural meaning of right (much to copyright holders’ pleasure), too many people use the word ‘right’ interchangeably without realising that right qua privilege is completely antagonistic to right qua right.

Now that people are twigging that something is going fundamentally awry with respect to children being sued millions for file-sharing and copyright considered a fundamental right of the artist (that prevents them starving), it’s more important than ever to resurrect the distinction between a (natural) right and a ‘right’ (crown privilege). We cannot continue to use a homophone for both.

Copyright is called ‘copyright’ because it is the suspension of the people’s right to copy, in order to reserve it into the hands of those privileged with it, who hold that privilege, hence ‘copyright holders’. We have Queen Anne to thank for granting the privilege.

For a little history concerning who copyright was created for (neither the author, nor the encouragement of learning) I’ll hand you over to Karl Fogel. Copyright actually discourages learning by impeding the free flow of ideas and communication of knowledge, because I would normally be committing copyright infringement in order to present an extract from his Question Copyright website:

Around 1700, political changes caused the government to loosen its control over the press. No longer desiring strong censorship, the government decided to allow the Stationers' monopoly to expire. This was a direct economic threat to the Stationers' monopoly-based livelihood, and they responded by proposing a compromise: they argued that authors have a "natural right" of ownership in their works, and that furthermore this right could be transferred to others by contract. The placement of original ownership with the author was a smart political ploy, by which the Stationers avoided charges that they were attempting to resurrect the old (and unpopular) monopoly mechanisms. But the stipulation that these new copyrights were a form of property, and therefore transferrable, showed the real motive behind their proposal. The Stationers correctly foresaw that authors would need to transfer copyright to a publisher as an inducement to print, and that therefore the publishers' position would about the same as it had been before. Indeed, their hand would be strengthened, because now the exclusive "ownership" of a work would now be based on well-established property law, instead of the temporary whim of the government.

The Stationers managed to persuade Parliament, and the result was the Statute of Anne: a copyright law created by the publishing industry, for the benefit of the publishing industry, and modeled on a defunct censorship system. The closest the Stationers ever came to talking about copyright's benefit to society was in arguing that they could not afford to print books (and thus encourage authors to write books) without protection against competition. Why books were to be considered different from other kinds of goods was never satisfactorily explained — one is left with the distinct impression of a monopoly-softened trade group in a panic at suddenly being asked to survive without special protections.

All this is a far cry from what the copyright lobby wants you to believe. There was no uprising of writers, clamoring counterintuitively for the right to prevent people from copying their works. The writers themselves never really participated in the debate around the creation of copyright. The argument was crafted and presented by publishers.

Copyright is not about subsidizing creators, it is about subsidizing distributors.

For further reading I highly recommend “The Surprising History of Copyright and The Promise of a Post-Copyright World” by the same author.



 

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