The (un)Nature Of Copyright · Tuesday July 10, 2012 by Crosbie Fitch
If instead of a libertarian you are a devout utilitarian or totalitarian, you are even more likely to be at a loss to understand why the 300 year old privilege of copyright is coming into disrepute and generally being ignored by a delinquent youth apparently unfamiliar with Queen Anne’s great philanthropic gift to mankind. Natural rights libertarianism is fine in itself, but while it may not provide you with your preferred basis for government, it is able to provide an explanation that legislative fiat cannot.
Natural rights explains the dissolution of copyright, because it helps us understand that human beings need their liberty. It is fundamentally vital to them. The state cannot expect the laws it passes to last if they prohibit natural liberties, whatever the pretext or ulterior motive, e.g. to preserve power, profit the plutocracy, or purely pompous purposes.
This brings me to John Baker, who recently e-mailed me with a few questions relating to his struggle to discern the fundamental principles underlying copyright law.
Copyright Is Unprincipled
I have been trying to hash out getting to copyright via first principles and seeing which bits stand up (which isn’t looking like very much so far!!)
No, you can’t get to copyright via first principles. :-)
Natural rights provides the principles. However it is controversial because it undermines the state, and its desire to decide the law irrespective of any fundamental principles. So, despite natural rights having a long history (even informing the Framers of the US Constitution – see Jefferson and Natural Rights), they aren’t taught much at all these days. Even lawyers only have about a cursory hour given to the subject in their law course (if they’re lucky).
A natural right is the natural and vital power of a being in equilibrium with its fellows.
Because we observe equilibrium in any species at large, even if there is power inequality in a few cases, we deduce that equilibrium is the natural/ideal state. This means that in the natural state the power of one individual is equal and opposite to that of another, and hence we use the term right – in which equality is implicit. They are natural rights because the equal power they represent is innate to the individual – not provided by any external agency.
There are physical boundaries that can be observed that delimit the individual’s vital powers or rights (into domains): the skin of the body dividing its interior from its exterior, the personal space (the limit of the body’s immediate reach), the vicinity or walls of the dwelling it inhabits, and the limits of its perception.
The individual’s physical power is their vital (necessary & imperative), physical ability, and thus right to exclude others from within those boundaries (should they need or want to).
The interior of the individual’s body, its life, health and integrity is paramount. The power to exclude others from within the body in order to defend its life, health and integrity is termed the right to life.
The right to exclude others from domains exterior to the body, is termed the right to privacy.
NB ‘others’ includes the actions and consequences of others’ actions.
The individual’s mental power is their vital (necessary & imperative) ability and thus right to understand and apprehend the truth of what they perceive with their senses, and thus the mental power and right to exclude the falsehood of others (or to “eliminate the impossible” as Sherlock Holmes puts it). This is termed the right to truth. It is vital not only to the individual’s survival, but also to detect and establish the truth concerning violations of the right to life & privacy.
What remains to the individual, is the power and vital ability to move and communicate within their natural environment. This is termed the right to liberty.
Natural rights do not conflict. There is no compromise or balancing between rights, although we can observe their descending vitality: life, privacy, truth, then liberty. One right precedes and delimits another.
Because rights represent powers innate to the individual, it is nonsensical to pretend that an individual can divest themselves of their rights (abandon them, or give them to another), and thus rights are a priori inalienable.
Because natural rights represent an individual’s innate and vital powers, the individual is naturally/instinctively aware of their imperative to assert their rights – to defend their right to life, privacy, truth, and liberty against others who may otherwise violate it. In those cases of violation, where one individual chooses not to respect the rights of the other (to take advantage) it will be up to the community to judge and repair/remedy the violation. Understanding the natural rights of all individuals concerned will thus enable justice.
The right to property derives from privacy. The objects private to us, those we possess upon our bodies, within the spaces we occupy or inhabit, are our property – assuming we obtained them by discovery, creation, or exchange – as opposed to theft (violating another’s privacy).
In the case where Fred exchanges/sells a basket to Tom, Tom is at liberty to manufacture a copy of the basket. Fred has no right to deny Tom that liberty, because Tom’s action in making a copy is not impinging upon Fred’s or anyone else’s right to life, privacy, truth, or liberty.
If the community, instead of recognising natural rights in its law, ignores or abridges natural rights and declares that people should no longer have the liberty to make copies of the craftwork they buy from each other, then this privileges craftsmen above their customers. Whenever they find out a copy has been made they can claim their privilege has been infringed and seek reparations against the infringer.
The important thing to note is that people have no natural right to prevent or prohibit others from copying them, from learning by following their example (if they are physically stronger they can attack & punish another for copying them, but remember we’re talking about rights). Moreover, their liberty which includes the power to copy, to learn by following another’s example, is vital to the individual’s survival, to humanity’s survival.
This is why the privilege we call copyright, established by Queen Anne’s statute of 1709, is unethical according to the fundamental principles of natural rights.
Ideas as Property
The only way I can see an idea legitimately being ‘property’ is if you keep it secret or have a means to delete it from your brain when you tell someone which is absurd!
Well, we certainly have the innate power and natural right to exclude others from the ideas in our brains (but not from coincidentally having indistinguishably similar ideas), or from the intellectual works in our private possession. Authors thus have a natural right to exclude others from their writings, but this is evidently easily misunderstood as a privilege to deny others their liberty to make copies of the writings they have purchased.
We don’t have much of a natural ability to deliberately forget something, no.
Innate Rights vs Held Rights
I need a good phrase that represents “RIGHTS BE-ER” rather than “RIGHTS HOLDER”. English language doesn’t make that easy unfortunately.
Rights are ‘held’, if they have been annulled (by law) in the majority, to leave them, by exclusion, in the hands of a few. Thus our right to copy, having been annulled in law (pretending we don’t have it, even though we do), is considered by the law to be held by the consequently privileged ‘right to copy’ holder, who can give it to another. Only rights that have been annulled (alienated from us by law, albeit naturally impossible) can thus be passed around.
Natural rights are innate and inalienable. We are born with them, they remain with us, and we die with them.
Corruption of ‘Right’ as Privilege
It is double think. A popular trick based on exploiting cognitive or linguistic limitation that doesn’t only apply to copyright.
When the term ‘right’ is used both for natural rights and for privileges (quasi ‘rights’ granted by law) then people are going to get confused into thinking copyright is as much a natural or human right as say, privacy.
The only one of those I can see practical in terms of copyright is an obligation to be honest/truthful. Obligations determine something you can actually ‘be’ if they are practical.
You can still find a hint of natural rights pertaining to intellectual works if you do a Google search for “moral rights”. We are effectively obliged to be truthful when we present another’s work, to avoid implying or misstating it as our work, because to do otherwise would violate the right to truth of the author and the rest of our audience (those to whom we present the work).
Natural rights can be discovered by anyone who cares to look, but this means there will be some terminological diversity.
Some, such as Murray N Rothbard, have, implicitly or explicitly, adopted the Lockean term ‘property’ to refer to the individual’s physical power of exclusion, the self-evident ownership of themselves, the space they inhabit, their possessions and their labour. However, this tends to make ‘property’ into a deus ex machina basis for natural rights, instead of its proper status as a consequence of them. This sometimes then tends to confuse people into thinking in terms of property first, people second, instead of in terms of people and their rights first, and their property second. It is thus safest to reserve the term ‘property’ for alienable objects, that are subject to the exclusionary power (privacy or exclusive right) of the individual that discovers, creates, or has received them (via gift or exchange) into their private domain.
“Natural Law and Natural Rights” By James A. Donald provides an alternative style of introduction to Rothbard’s.
Also see on this blog The 18th Century Overture – A Crescendo of Copyright – Natural Finale and Reprise and its precis Questioning Copyright.