Copyright: Check Your 'Privilege'

Copyright: Check Your 'Privilege'

These are exciting times for copyright policy. The rise of the Internet has facilitated piracy on a massive scale. After repeated copyright extensions, works from the 1920s will start entering the public domain again in 2019 unless Congress makes terms even longer. And politically, the lobbying force of Hollywood, the music industry, and other copyright-based economic heavyweights is being met by tech interests like Google, as well as copyright-skeptical scholars across the political spectrum. 

Tom W. Bell of the libertarian Cato Institute is one of those copyright skeptics, and he has a new book, Intellectual Privilege. It is a serious work, moving beyond the debate's many tiresome cliches (information wants to be free!), digging into the philosophical and constitutional roots of American intellectual-property law, and offering suggestions as to how we might move beyond copyright in the years to come.

I'm an unapologetic copyright supporter and don't buy much of what Bell has on offer, so the review that follows is mostly critical. But let me say this up front: This is a thought-provoking book that everyone interested in copyright law should read. 

***

Much of Intellectual Privilege focuses on natural rights and common-law rights. "Natural rights" come from the classical-liberal philosophy of thinkers like John Locke, who emphasized life, liberty, and property. (Supporters claim these are the rights that exist "in a state of nature.") Common-law rights, meanwhile, are the judge-made rules that developed organically in England starting in the Middle Ages; Bell sums them up as protecting one's "person, property, and promises."

Is copyright a natural and/or common-law right? Though he insists it is neither, Bell provides hints that something like copyright could exist under these basic rules, at least in theory. There is no obligation for a creator to share his work, and nothing to stop him from sharing his work only with those who agree to certain terms. Such an agreement is a promise enforceable under the common law.

The problem, especially once a work is distributed on a wide scale, is what happens when someone breaks the agreement. When it comes to physical property, a single theft is a single theft -- a violation of natural right and common law, but something that's limited in scope and can often be addressed. With a creative work, by contrast, a single bad actor can make copies to compete with the creator's, and the owners of those copies, not having agreed to anything, can copy them at will too. The original agreement becomes useless, and the creator has no way to recoup his investment, even if the work is a huge success. As Bell notes, it would be impossible to do anything about this in the proverbial "state of nature."

But an important question question is this: If you lived in a world where this happened, what would you think of the copies that were created in violation of the contract? I, for one, would see them as fruits of a poisonous tree. I would think that people had a duty not to buy them knowingly, much as single people have a duty not to have affairs with married people, even though single people have not taken any wedding vows. It's wrong to participate in the violation of a contract, even if the wronged party has no way of punishing you.

And as much fun as hypotheticals are, it's worth thinking through how the principles of natural rights and common law actually work in the modern world to enable capitalism when it comes to physical products and services: They protect people's exclusive right to their work and then let the market do its thing. Yes, natural rights and the common law have other effects that are even more important, such as preventing violence. But even judged purely on the merits of the economic system they create, they have been an astounding success, and replicating that system in the realm of creative works requires something like copyright -- a way for creators to capture the value they contribute.

In a certain sense, then, copyright can be seen as what happens when natural rights, common law, and creative output step out of theory and into reality. Rather than trying to get everyone to agree not to copy a work before experiencing it, creators can simply use the copyright symbol to communicate that it was released on the condition that it not be shared freely. Consumers are not bombarded with agreements to sign constantly, though they are given a duty to check into a work's copyright status before sharing it, and the government sets a single standard that applies to all copyrights -- the length of the term, whether it's legal to resell physical copies, whether it's legal to quote from the work, etc.

To me, that seems like a commonsense arrangement, though our current laws make some real mistakes in implementing it. (For example, copyright applies even if the author did not register or label the work, leading copyright skeptics to have a field day going on about how napkin doodles are copyrighted.) It's a tad silly to debate whether copyright "is" a natural right or a common-law right, simply because it's a unique situation. But I see nothing to get upset about if you're someone who treasures freedom and voluntary arrangements: If you don't want the law to stop you from copying someone else's work, don't experience works in the first place if they were released under the condition that they not be copied. To do otherwise is to assert a right to the product of someone else's efforts.

That's not how Bell sees it -- he sees it as a grave injustice indeed, an outright violation of common-law and natural rights, that someone who hasn't explicitly agreed to a non-copying agreement can't copy. He concedes that copyright may be a "necessary evil" to encourage creative output (which sets him apart from the more extreme copyright critics), but sees it as a mere government "privilege" granted to creators, as opposed to the "natural" protections the rest of the labor force has for its work. He's always waxing poetic about the horrors of copyright: It "restrains wayward guitars," it "gags voices, ties hands, and demolishes presses," it "limits what we sing in church, what we post on our blogs, and what we read to our children," it constitutes "an exception to the general rule that we can freely speak the truth." He even says we should see people who make their living from copyright the same way we view welfare recipients: They "may merit our concern and material aid, but only as a matter of private morality." They have no right be paid when they create something and put a price on it and we, knowing the price, choose to enjoy it.

***

I don't think the Founders viewed copyright quite as negatively as Bell does. As he concedes, many state-level copyright laws invoked natural rights -- he says this was a mere pretext so lawmakers could help special interests -- and James Madison, the Founders' leading copyright advocate, once claimed it was a recognized common-law right in Britain. (Unfortunately, the decision he was referring to had been overturned years before.) But it's pretty clear they were more reticent about it than I am, too. Even Madison referred to it, pejoratively, as a government-granted "monopoly," and the Constitution authorizes the protection of copyright only under certain conditions:

Congress shall have the power ... to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

The ultimate purpose of federal intellectual-property law, therefore, must be to "promote the progress" of science and useful arts, not (for instance) to protect creators' right to place conditions on the use of their work, or to ensure that scientists and artists are treated fairly. This distinction is not as sharp as many copyright skeptics like to think -- one way to promote the progress of science and art, after all, might be to protect the rights of scientists and artists and to treat them fairly. But the Founders did make it clear that these goals, if they are pursued at all, must be pursued in the interest of promoting science and useful arts.

What about the rest of the clause? One could write a whole essay about the various terms here -- "progress," "limited times," "writings," "exclusive" -- and Bell provides a useful rundown of the scholarly debate. But I'd like to focus on a particularly aggressive argument he makes stemming from "science," "useful," and "respective" -- an argument that, if correct, would mean that a large proportion of copyrights are unconstitutional.

At the time of the Founding, "science" was often used as a broad term for knowledge; in many definitions it included fields like literature and music. There's a lot of disagreement as to whether it referred to any body of knowledge that can be subject to study and criticism, or rather was restricted to specific fields and/or specific types of knowledge within those fields. Legislators and courts have long taken a broad view; musical compositions were made copyrightable under federal law in 1831, and new technologies like motion pictures have been copyrighted without too much trouble.

Bell says, however, that a broad definition of "science" isn't enough to make copyrights for purely expressive works constitutional -- copyrighted material must always be "useful," too, if we interpret the word "respective" properly.

Bell writes that "respective" could "impos[e] a comprehensively parallel construction," with the first track ("science") pertaining to copyrights and the second ("useful arts") pertaining to patents. Or, to rewrite the clause to make this meaning clear (and modernize the capitalization):

Congress may promote the progress of science by securing for limited times to authors the exclusive right to their writings; also, Congress may promote the progress of useful arts by securing for limited times to inventors the exclusive right to their discoveries.

This makes a lot of sense, because science, authors, and writings go together, as do useful arts, inventors, and discoveries. In this reading, everything that falls under the definition of "science" is fair game for copyright. Bell, however, prefers a different interpretation -- one that "splits [the clause] into two tracks only after 'Times.'" He claims that this is the reading "most likely to protect common-law rights from statutory encroachments." Again, to rewrite it:

To promote the progress of science and useful arts, Congress may secure for limited times to authors the exclusive right to their writings and to inventors the exclusive right to their discoveries.

Bell claims that under this interpretation, copyrights on works that constitute science but not useful arts would not be allowed: "The Constitution requires that copyright promote ... 'the Progress of Science and useful Arts' -- and a great many works now covered by copyright cannot plausibly claim to do both."

Now, Bell is a law professor and I have a BA in journalism, but this strikes me as an odd reading. Even with Bell's interpretation of "respective," I see no reason Congress couldn't "promote the progress of science and useful arts" by protecting some copyrights in the realm of science and others in the realm of useful arts. Those words limit the overall scope of Congress's goal -- it couldn't copyright a work that fell into neither realm -- but the word "and" does not imply that every copyright has to meet both criteria. (If the clause read, "To promote the progress of heavy metal and rap, Congress may recognize copyrights," would copyright apply only to rap-metal?)

Ironically, Bell's preferred reading might give Congress broader authority than the alternative. Instead of being able to grant science-promoting copyrights and useful-arts-promoting patents, it could grant both copyrights and patents in either realm.

***

In the book's later chapters, having argued that copyright is a regrettable infringement on our more important rights and that current copyright policy goes well beyond the limits laid out in the Constitution, Bell makes a few suggestions for how we could roll back copyright and rely instead on common-law and natural rights. Many of his actual suggestions aren't terrible -- e.g., we could encourage creators to use common-law agreements instead of copyright, and refuse to enforce copyright when agreements contain elements that restrict fair use. He points out a few trends that might be encouraging: Some creative industries do fine without copyright, others are already making use of licensing agreements and technological anti-copying tools, amateurs are increasingly able to share their work, and markets for creative works are expanding.

I'm not as optimistic as he is.

When it comes to creative industries that succeed without copyright, the problem is that Bell does not provide enough detail about the economics of each particular situation. For example, like many copyright critics before him, Bell references the innovation that takes place in fields like fashion, where copyright doesn't apply. Fair enough -- except that there are huge differences between these industries and, say, music, movies, and books. Clothing and perfume sales require the exchange of physical items, which have to be paid for regardless of intellectual property; further, designers can create valuable brands, the infringement of which constitutes fraud. By contrast, music, movies, and books can be distributed for free, and illegally downloaded copies are just as authentic as the originals -- indeed, they are usually digitally perfect recreations.

Perhaps a non-copyright approach is most promising when it comes to video games and software. These industries go to great lengths when it comes to "digital rights management" (DRM), programming game consoles not to allow pirating and PC programs to require online authentication -- in other words, selling products that cannot be copied instead of relying on the government to prevent infringement. Many games, such as those on the PC service Steam, are sold as a license to a single user and cannot be transferred to others. (This may prove to be a significant fault line in the copyright-critic movement. As a libertarian Bell seems fine with these sorts of voluntary arrangements; the Electronic Frontier Foundation, by contrast, loathes DRM and insists that customers should be allowed to transfer licenses.) These techniques have proven much more difficult when it comes (again) to music, movies, and books -- authentication systems are more difficult, the dominant file formats are easily copied, and even if the file itself can't be copied it's easy to recapture the material through photos or the audio/video signal -- but we can keep our fingers crossed.

Another theory Bell floats is that a rising tide of generous amateurs will create a large supply of creative works. It's certainly true that countless hobbyists are dumping their work on the Internet; as a guitarist with very little money in my early 20s, I myself was able to make reasonably decent-sounding recordings of my songs and post them for free to (to date myself) MySpace. The problem is that there's very little market for amateur works -- unknown bands that release their albums through the DIY label TuneCore almost never sell anything, for example, and blockbuster movies and video games require budgets in the millions. Professionals really are needed to pick out the best creators, fund them, push them to be better, give the final result the kinds of production values that the public expects (ever try to record a rhythm guitar with distortion? ever see your favorite writer's raw copy?), and aggressively promote works to the public. It's great that it's so easy for a hobbyist to put his work out there, but hobbyists rarely compare to the real thing.

Bell also claims that copyright becomes less necessary as markets expand, because it's easier for artists to turn a profit. There are ways to make this argument -- as he notes in an aside, a country like the U.S., a leader in entertainment products, might gain new customers but not much competition as new markets open up (though this largely depends on copyright enforcement in those new markets). A bigger market can also create a "superstar" effect, where the best artists rise to the top and rake in tons of cash.

But instead, the crux of his argument is a bizarre economic model in which the ratio of creators to the whole population stays constant -- if the size of the market doubles, so does the number of creators -- and yet prices rise. Bells claims that as the market gets more fragmented, artists cater to small groups of rabid fans willing to spend tons of money to get exactly what they want, foreclosing the possibility of greater competition. Put aside the question of whether this sounds remotely plausible even in theory, and of whether it would actually justify loosening copyright protections -- has it happened?

The market has certainly expanded and fragmented -- we're no longer stuck with a few lame TV networks, and everyone has instant access to even the most obscure music, movies, and books -- but entertainment prices have dropped substantially. Cable TV is ubiquitous (with everything from broadcast shows like American Idol to entire channels dedicated to history, sports, music, and pets), and Netflix is less than $10 a month whether you get art-house films or summer action flicks. As a teenager circa 2000 I rarely found even a used CD for less than $8 (which is $11 today), and the only free legal music was on the radio, where you didn't get to pick what you heard. Today I buy MP3 albums for $4-5 during the constant sales hosted by Amazon, Google, and 7digital, and free streaming services like Spotify let you listen to whatever album you want in its entirety.

Bell admits that his model doesn't quite match reality, aside from a few specialty publications and TV networks. But don't worry, he says -- the very fact that there are plenty of affordable options means we don't need copyright as much, because there's no shortage of works. In other words, high prices and low prices both mean copyright is less needed, high prices because they indicate excessive profits and low prices because they indicate an overabundance of supply. Okay, then.

A different take: Given that revenues are still falling in many creative industries as they try to "compete" with pirated copies of their own products, maybe the danger is that our high-quality options will stop expanding. (Frighteningly, around half of recorded-music revenue comes from people who still buy CDs.) Maybe we should at least imagine what the world would look like if we did a better job of enforcing the copyright laws we have -- I think we would have more creative output, with companies better able to take risks and artists better able to quit their day jobs, and would not run the risk of destroying entire industries that are supplying popular products.

Admittedly, though, if we enforced copyright, musicians might not post their complete discographies to Spotify for free listening in the hopes of catching a few precious advertising pennies, and pirates might throw a temper tantrum over actually having to pay when they experience productions that cost thousands or millions of dollars to create. Oh, the humanity.

***

To end on a positive note, Bell concedes that it's impossible for policymakers to balance everything objectively. Copyright stimulates original works by protecting both profits and the integrity of an artist's output, but it hinders the consumption and re-adaptation of existing works, and the Constitution merely gives Congress the goal of promoting "Progress." Given this reality, Bell makes a sincere effort to determine why copyright exists and how we might move forward, and unlike many of his fellow copyright minimalists he takes seriously the possibility that rolling back intellectual-property protections might have some bad effects. He suggests that we take tentative steps toward dismantling copyright and see what happens, not that we blow the entire thing up and let anarchy reign.

So, read Intellectual Privilege. And don't pirate it, either: Bell copyrighted it, albeit under the terms of the 1790 Copyright Act. It will be 2028 before you can have it for free, or 2042 if he decides to renew his rights. Er, "privileges."

Robert VerBruggen is editor of RealClearPolicy. Twitter: @RAVerBruggen

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