There is both matter and energy in the universe and we work them into useful objects, i.e. art and technology. In everything there is both a material and informational component. The material aspect of objects that we produce we call material works, and the informational aspect we call intellectual works. We apprehend matter with our bodies and information with our senses. We also control the movement of, and access to, material and intellectual works through physical means (as opposed to supernatural means such as ’spooky action at a distance’). It is from the individual’s natural ability to physically possess themselves and other objects that we derive the right to privacy and consequently the notion of property (objects possessed within our private domain).
In the 18th century the privileges of copyright and patent were granted to authors and inventors (registrants of novel designs). These are monopolies applying to intellectual works and augment people’s natural intellectual property rights with unnatural ones – also known as ‘legally granted rights’ or ‘legal rights’ or these days, simply ‘rights’.
Thus those who would retain their 18th century monopolies like to call them ‘rights’ rather than privileges, precisely to conflate them with natural rights.
You have a natural right to prevent a burglar stealing your bread as much as your diary or a copy of it, but only a privilege to prevent people printing copies of the carol you wrote for them that they sung at xmas.
Thus, the monopolists prefer ‘intellectual property right’ to ‘intellectual work privilege’, and simply contract the former to ‘intellectual property’ – so you don’t question whether the missing ‘right’ is a natural right or an unnatural, legally granted right (estd. by Queen Anne in 1710).
Unfortunately, instead of simply being against state granted monopolies, some people also use the corrupt term ‘intellectual property’ in place of ’state granted monopolies’ and so declare themselves to be against ‘intellectual property’. This then means they are also against the natural right people have to their intellectual property, i.e. against its removal or copying by burglars.
Jim Killock of the ‘Open’ ‘Rights’ Group (ORG) falls into the trap set by publishers in terming their 18th century privilege of a reproduction monopoly as a ‘right’ (omitting ‘legally granted’ to insinuate ‘natural’).
In his comment of March 10, 2010, 11:57:57, Jim Killock appears to believe copyright is a creator’s right and should revert to that individual artist rather than the record company that they signed with.
On the other hand, I can think of several instances where we’ve backed creator’s rights. In the term extension debate, we strongly argued that rights should revert to artists, not record companies, even within the existing term of sound copyright.
We also argue very strongly for a parody exception in copyright, which to our mind is a ‘creator’s right’, and much of the highly valuable comedy sector would benefit from legal certainty.
In our response to the P2P consultation, we argued that license deals were being blocked by the major rights holders (not the artists themselves), and this is depriving artists of the income they deserve.
I suppose Jim therefore believes that a ‘creator’ could sell their right to make a parody?
It is the right to make a parody that in some jurisdictions is suspended by the privilege of copyright. However, you can’t have it both ways. If you’re going to call copyright a creator’s right then obviously it already includes the ‘right’ to make a parody. So, why make an exception in copyright if copyright is already a creator’s right?
If copyright is a creator’s right then making an exception for parody because that really is a creator’s right seems to be redundant.
Jim is going to be very confused (as is ORG and its members) if it keeps on using the term ‘rights’ for both privileges and rights.
Here are a couple of clues to tell the difference between a ‘right’ and a right.
If it can be sold, transferred and/or held then it is a privilege or ‘right’ as some confusingly prefer to term it (qvRightsholder).
If it is something that the individual is born with, that all individuals have equally, that like a shadow no individual can sell or otherwise be alienated from, then it is a (natural) right, e.g. the right to life.
Unscrupulous legislatures can of course still make laws to suspend an individual’s rights (derogation) in order to grant privileges, such as the granting of copyright and patent in the 18th century, and as ACTA requires to be granted in the 21st. Incrimination upon accusation?
I posted an explanatory follow up comment to Jim’s, but at the time of writing it has not yet passed moderation:
Jim, copyright is not a creator’s ‘right’ in the same sense as ‘right’ in ‘human right’. If it was a natural right instead of a legally granted right it would be inalienable and the individual wouldn’t be able to sell it to a record company. There wouldn’t therefore be any conception of it reverting.
Legally granted rights, or privileges, necessarily involve the state’s suspension of the individual’s respective natural right. So copyright (granted for the exploitation of the press) involves the state’s suspension of all individuals’ natural right to copy (even the musician has lost their right to copy their own music – they may choose to retain the privilege to do so of course, instead of selling it).
This is why ORG cannot claim to be about protecting the individual’s rights if it also attempts to protect privileges granted for the purposes of exploitation by manufacturers of copies such as record labels and other publishing corporations.
The right to make copies does not belong to the creator, but to the people – they are the one’s who’ve had their right suspended, and it is to them the right should revert, to be restored. That’s why a lot of people have the idea that copyright should only last a couple of decades – a commercially lucrative monopoly, at the end of which the public’s suspended liberty to make copies would be restored.
You’ve got to recognise the difference between protecting and restoring the individual’s rights, and protecting and reverting privileges attaching to original intellectual works.
Are you the Open Rights & Privileges Group, or the Open Rights Group?
And as Rob suggests, the ‘Open’ bit may need some attention too.
I’ve now added:
We’ve had copyright for such a long time that its proponents’ use of ‘right’ as a contraction of ‘legally granted right’ has conflated and corrupted the original 18th century meaning of right as a natural right.
The following excerpt from Wikipedia’s page on Thomas Paine’s Rights of Man seems to put the difference between ‘right’ and right most succinctly:
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.
Thus: The Statute of Anne, by annulling the (natural) right to copy (that is inherently in all the inhabitants), in the majority, leaves that right, by exclusion, in the hands of a few (copyright holders). The privilege of copyright is consequently an instrument of injustice – held in the hands of a few.
You cannot understand copyright in the 21st century in terms of ‘right’ because the term ‘right’ has itself become corrupted by the privilege it is now used to describe.
You are an extremely lucid thinker and writer, and this is one of a few really worthwhile blogs I’ve come across on this subject. I’d also include openrights.org in that list. Speaking of which I replied to your comment @ www.openrightsgroup….
I look forward to reading your next entry, particularly if it is going to contain more of the meat on your proposed open business model(s).
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 Copyrightwebsite:
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
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
I post this here, because ORG’s Jim Killock finds my comment below too offensive to permit to appear beneath his recent blog item entitled When Copyright Goes Bad
Copyright isn’t going bad – it’s always been bad, ever since the privilege was granted to the Stationers’ Guild by Queen Anne in 1710.
What’s going on is that more and more people are discovering that their natural liberty to share and build upon their own culture has been suspended by an iniquitous 18th century anachronism.
It seems ORG doesn’t mind comment as long as it’s ‘on message’, i.e. remains in accord with ORG’s support for copyright. A rather peculiar policy…
Update 22 Apr 2010 · 1:53pm
As Ibutton77 kindly brings to my attention, ORG has now relented and permitted my comment to appear. Whether their embargo of my comment would ever have been lifted had I not blogged my comment here is open to conjecture, but a discriminatory embargo isn’t much better than discriminatory ‘moderation’.
It’s unfortunate that organizations like this are so enamored by the institution that perpetrates the very grievances they fight against.
The idea that “IP” is inherently a good thing is never questioned, despite the horrendous mess it has become. Rather than fixing the real problem, they want to minimize the symptoms through reform or limitation. I think such a strategy has even less of a chance of working in the long run than outright elimination.
The Pirate Party suffers from it too. It’s a sacrifice of principle in pursuit of membership. If such organisations perceive popular support for copyright simultaneously with popular outcry against its enforcement, then they believe they too must engage in such doublethink. They must shun the ‘extremists’ in order to focus discussion on reaching a prophesized balance between the interests of publishing corporations in enforcement and the interests of individual copyright aspirants in one day enjoying their privilege (as all hope for stardom).
The Pirate Party UK has now excluded me from access to my discussions critical of copyright on their forums (unless I pay to become a member of a party whose support for copyright I object to). ORG has ejected me from their discussion list, censured me on their web based forums, and informs me my comments are not welcome on their blog articles.
It’s not very inspiring is it?
Even Nina Paley notices the stigma against copyright abolitionism:
“I’m now artist-in-residence at QuestionCopyright.org, and do what I can to promote alternatives to copyright. (Actually I’m a copyright abolitionist, but many find that identification unpalatable.)” AgainstMonopoly.org
If the likes of PPUK and ORG try to play down or suppress the existence of abolitionists and the natural rights argument against copyright, are they really demonstrating they will act in the best interests of the public they court?
Bwaha, you’re comment is showing at their article presently. It claims circa 10:36am.
Now how do we get your blog to display time in addition to date, demonstrating you posted this before they let your posting through on that end? ;3
I would very much like to know what prompts Lawrence Lessig to cling to his middle-ground stance. I have heard him say on many occasions that reform is good and abolition is bad. He seems eager to present a strong foundation for his case against (strong) copyright, just as we do, however I want to know what his specific argument is against abolition.
Do you guys happen to know if he’s gone about clarifying that anywhere yet?
@SteelWolf: The reason why the validity of “IP” is never questioned is because in the US you are “born” with it. Not “born” in the literal sense, but burned into your mind as part of one’s education. The concept behind “IP” is really quite simple and carries significant moral/ethical weight. Don’t artists deserve some sort of limited “protection” for creativity? Even I wouldn’t argue against that.
However, over the years, “IP” has morphed into a demon that now threatens our liberties. As you begin to observe and be affected by this increasingly onerous demon; the light bulb in your head finally goes off and you get around to asking the question concerning the validity of “IP”.
Since the video clip was made by experts in the field, this issue should have been further explored. In fact, I would say that this is a major shortcoming in the fight against oppressive “IP”. It leaves those favoring so-called “IP” with popular support that “IP” is a real property right that must be protected. The reality is that the thieves are the those asserting “IP” ownership since they are depriving the public of their rights. The public must be made aware of this.
Ibutton77, as for Lawrence Lessig, given the extent of his career in law I wouldn’t be surprised if he sees law as an unimpeachably virtuous institution, and any social problems it causes as perfectly amenable to legal solution, i.e. in copyright’s case, Creative Commons licenses. I suggest that he is therefore a wholly committed advocate of copyright and supports the notion that an author should have the privilege of determining how their work may be communicated or exploited by society (despite the fact the privilege was created for the press).
So to copyright advocates, copyright abolition is pretty much heresy, and to support the proposition that copyright is an unconstitutional instrument of injustice would be akin to the apostasy of confessing to the pope’s fallibility and conceding that the Earth orbits the Sun.
As I said on his blog“If there’s any man who will have done more than any other to prolong the lifespan of copyright legislation more than a century beyond its 200 year use by date (1910) by popularising its use by impotent self-publishers, it’s Lawrence Lessig.”
Without Creative Commons, there’d be far less respect for copyright (see Creative Commons consolidates old-school copyright?). So it’s really just postponed the build up of social pressure for ‘something to be done’ about copyright. Perversely, the publishing corporations are doing an excellent job at stoking the furnace with ACTA, and the draconian copyright enforcement legislation it is intended to spawn, such as the UK’s Digital Economy Act. So, it is ACTA we can look to as a spur to copyright’s inexorable abolition.
Steve R, I’d readily agree that a great proportion of popular support for copyright and patent derives almost entirely from indoctrination. That’s why we get such unfounded justifications for it, e.g. “Creators deserve the reward of a monopoly: for their gift to mankind, and as an incentive to others’ creativity” and “To sell a copy is to sell another’s work, to steal the fruits of another’s labour”.
Considering how pervasive the pro copyright arguments are, even to the point where some claim it needs to be extended longer than it already is, I don’t understand why argument in favor of abolishing it is so frowned apon as to be banished from the debate by some copyright reform advocates. If nothing else, taking that off the table in the copyright debate is a terrible tactic. Look at the opposition – ACTA, DMCA, U.K. Digital Economy Bill, the pro copyright “as is” crowed has shown no lack of aggression. Even if an organization such as PPUK favours reform rather than abolition it should not stifle argument from people favouring abolition, if anything it should telling the whole pro ACTA Digital Economy Bill, three strikes side that if that is where they insist on going(which they are) then they (PPUK) will cease trying to compromise on copyright and push for an all out ban. The pro copyright people bring all their weapons to the table, the reform crowed should do likewise.
Comment #000411 at
Monkey D. Luffy
Monkey, I see maximalism as aggression, reform as appeasement, and abolition as principled, but then perhaps I would…
I think reform organisations have given up hope (if they ever had it) of persuading the populace that copyright isn’t actually an individual’s right, but a privilege intended for the press. They focus on making enforcement a little more humane, if not more rigorously applied (instead of infringement being assumed, and innocence a matter for the infringer to prove).
See Can Copyright Be Saved? for another example of people with the strange notion that the way to preserve a privilege is to prevent its detractors having the opportunity to raise arguments against it.
I’m referring in particular to Rick’s comment in which he requests: “Hey moderator! Can we please NOT have any more posts from C. Fitch?”
Hi, I’ve been reading this blog for a while and started questioning copyright myself as a result.
“What’s going on is that more and more people are discovering that their natural liberty to share and build upon their own culture has been suspended by an iniquitous 18th century anachronism.”
I have two objections, first, who’s to say that what’s natural is what is good? Or that when something is natural, it is the right thing to do?
The second one is that you claim copying a right we are born with. I think that we are not really born with any rights, just as we are not born with any language, but that we agree that we are born with them.
Jassmonsteret, I suggest you search the web to consider and compare diverse explanations of natural law and natural rights (and criticisms thereof).
Primarily focussed in the digital realm, I exhort the restoration of the individual’s natural rights concerning the possession, creation, communication and exchange of intellectual work, through the abolition of the privileges that derogate from them (copyright and patent). I enumerate natural rights as: Life, Privacy, Truth, and Liberty. They are the innate needs, powers and imperatives of human beings if considered as equals in a harmonious community. Inegalitarian states can grant greater powers and privileges, but then these are not natural, and are, as Paine says, instruments of injustice.
I read on The 1709 Blog that even though Professor Lionel Bently concedes the legitimacy of copyright is a fit and proper subject for academic study, he cannot bring himself to pose any vision for the future in which it does not remain legitimate.
Lionel posed three visions to consider:
(i) judicial deepening of harmonisation in the ECJ;
(ii) further piecemeal legislation from the EU; and
(iii) a European copyright code and unitary European copyright.
(iv) Abolition, of course, being unthinkable.
The black swan of cultural liberation may be a nightmare for crown privileged publishing corporations and their lawyer footmen, but for the downtrodden mortals it cannot return from its migration too soon.
Naturally, you are free to take any liberties you wish with these published works. However, should a privilege ever be granted to constrain your liberty then its holders constrain you thus: the liberties you take may not be withheld from those to whom you give these works (or your combined/derivative works), who you must similarly constrain.