Why do we have copyright?

Andrei Mincov is a lawyer who specializes in copyright and related areas of law, and is actively involved in the copyright revision discussion. In April of this year he posted a Response to William Patry in the form of a review of William's book How to Fix Copyright. While I agree more with Mr. Patry's take on the issues than Mr. Mincov, I found reading the article and Mr. Patry's critique of this response extremely informative to solidify in my mind why I believe what I do.

Lets start from the basic questions of why we have copyright, which Mr. Mincov discussed as such:

I have been saying this for years: copyright laws can only exist for one of two reasons: either they focus on protecting the interests of creators and investors while disregarding the potential consequences for the public; or they focus on protecting the interests of the public while providing to creators and investors the minimal level of protection required to ensure that the public has the most amount of new works to consume.

The idea of balancing these interests is insane, even though it became mainstream. I am well known for comparing it to an attempt to balance the interests of rapists and their victims in a single piece of legislation – it just doesn’t work that way… I will be returning to this metaphor throughout this article. If you feel offended, stop reading.

While this is a simplification, much of the discussion appears to start from the idea that "original" ideas (expressions, methods, etc) are naturally a form of property (See "because it's MINE!" comments), and thus governments should protect them similar to and for the same reasons we protect tangible property.

Immediately at this fundamental point Mr. Mincov and I part ways. Nature makes tangible things rivalrous, and thus governments must protect property rights in order to deal with this natural rivalry. Ideas are non-rivalrous, and thus there is no justification for the government to intervene except for some public policy purpose. I can agree or disagree with the purpose or level of intervention, but it is unlike tangible property where it is nature itself that mandates that there be an intervention to resolve disputes over this rivalry. In the case of statutory monopolies it is government itself which creates artificial scarcity and artificial rivalry.

This puts me squarely on the side of "protecting the interests of the public, providing to creators and investors the minimal level of protection required to ensure that the public has the most amount of new works". This justification for copyright has been expressed as being "for the encouragement of learning" as articulated in the Statute of Anne, often discussed as the first copyright law. This language was divisive as even in those days there were individuals who thought of the copyright monopoly as being justified similar to tangible property law, closer to what Mr. Mincov expresses.

Once you find yourself on one or another of these answers to the "why copyright" question, it becomes hard to discuss details without bumping into incompatible language. Mr. Mincov suggests "you don’t fix broken business models by stealing from those who attempt to run them". In this he is suggesting that disagreeing with the restrictions that copyright holders might wish for to be similar in some way to "stealing" of some naturally rivalrous property. I've discussed many times my objection to the abuse of the term "theft" to describe anything relating to limits, exceptions or infringement of copyright, including calling it the Jefferson Debate.

As I discussed in Statutory knowledge monopolies and supply management, copyright is an exception to free markets where the government is stepping in for a defined public policy purpose just as they do with supply management. We can agree or disagree with the necessity of this intervention, but Mr. Mincov presumes a property mindset and suggests this government intervention isn't an intervention at all but something that would already exist in a free market.

From these different standpoints it is hard to even have a philosophical discussion on which policy direction (increasing or decreasing "copyright") is more "socialist" and which is more "capitalist". Those who share my views on "why copyright" will consider more copyright to be more "socialist" or "collectivist". It is the rights of the collective that are theoretically protected by the copyright government granted monopoly, intended to trump the rights of the individual for some defined public policy purpose.

You could also ask "why copyright" on a more personal level, as in why are we involved in copyright policy?

I only became actively involved in this area of policy when enforcement got out of hand. I never asked the "why copyright" question until copyright started to be abused as a justification for revoking control over computers from their owners.

While technologically illiterate copyright holders can believe "technological measures" are like a padlock they put on their property, the reality is that it isn't possible to encode content such that it can make decisions (See: Harry Potter).

Digitally encoded content alone is no more capable of making decisions than a book about monsters is capable of crouching under the bed waiting to try to bite Mr. Potter. If there are any decisions to be made, including if or when content can be copied, the rules are encoded in software and are executed on some device (computing hardware). The critical moral and legal question should be who owns that device, not who owns any copyright.

When we are talking about a previous owner keeping keys on a device such that the owner isn't allowed to control the keys (and thus control the device), I consider that a primary infringement of the device owners rights. When we are talking about a copyright holder encoding their content such that it is only interoperable with non-owner locked devices, I consider that a secondary infringement of the device owners rights (See my brief to C-11 legislative committee).

Even if I believed the copyright monopoly could be justifiable similar to tangible property law, I would still find offensive any suggestion that copyright justified direct or secondary infringement of tangible technology property rights. I consider the rights and interests of creators to be a subset of the wider rights of technology owners, given creators must have control over the technology they use to create and communicate their creativity in order to have any rights at all.

This brings me back to Mr. Mincov's analogy of an "attempt to balance the interests of rapists and their victims in a single piece of legislation". In the case of technological measures used in the context of copyright we don't agree on which is the perpetrator and which is the victim. I obviously believe abuses of technological measures to (primary or secondary) infringe the tangible property rights of technology owners should be clearly outlawed, which is the opposite policy to what we saw in Bill C-11. I have a clear idea of who the perpetrator is, and don't consider it reasonable for heavy handed government to "balance" my property rights against the interests of (often commercial) infringers of my property rights.

I may not be a founder of a law firm, but I am a supporter of individual rights as Mr Mincov suggests he is. It is unfortunate, but still very common that we don't all agree on what supporting individual rights means.

I am always interested to hear from lawyers that agree about the critical importance of technology property rights to our modern lives and economy. If you are such a lawyer, please get in touch!

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