Copyhype

One of the recurring themes seen in some criticisms of copyright law is that it is weighted too strongly in favor of creators and copyright owners, with the public good taking a back seat.

A couple of recent online posts provide examples of this argument. The first is from politician and Swedish Pirate Party founder Rick Falkvinge, who writes at TorrentFreak about Why the Copyright Industry Isn’t a Legitimate Stakeholder in Copyright. Journalist Julian Sanchez provides the second in Things that are Irrelevant to Copyright Policy.

Both provide similar views of what copyright policy should be. Falkvinge states that the purpose of copyright “is to maximize the available culture. Nothing more and nothing less.” To Sanchez, the question when considering copyright policy “is whether a marginal restriction on the general ability to use information incentivizes enough additional information production over the long run to justify denying that marginal use to every other human being on the planet, whether for simple consumption or further creation.”

I don’t want to go into a deeper discussion of either article here (though I welcome readers to discuss them further in the comments). Rather, I want to address the broader point made, as it is emblematic of a point made by copyright critics.

It’s true that copyright’s ultimate beneficiary is the public. But the immediate beneficiary is creators. More importantly, the best way to ensure the public benefits the most from copyright law is by ensuring that creators have secure and stable rights to their creations. It makes little sense to argue otherwise — if the public benefits from the creation of new works, how is that interest served by reducing the incentive to invest in creating new works?

How Copyright Benefits the Public

In the US, the Constitution gives Congress the authority, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors … the exclusive Right to their … Writings.”

Explanations of how the public receives its benefit through the law begin with the author of the Copyright Clause itself, James Madison. In the Federalist Papers, No. 43, Madison writes, “The public good fully coincides in both cases with the claims of individuals.”

Since then, the Supreme Court has expanded this explanation:

• “Copyright is a right exercised by the owner during the term at his pleasure and exclusively for his own profit and forms the basis for extensive and profitable business enterprises. The advantage to the public is gained merely from the carrying out of the general policy in making such grants and not from any direct interest which the Government has in the use of the property which is the subject of the grants.” (Emphasis added.) ¹Fox Film v. Doyal, 286 US 123, 130 (1932).

• “The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’ Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.” (Emphasis added). ²Mazer v. Stein, 347 US 201, 219 (1954).

• “The limited scope of the copyright holder’s statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.” ³Twentieth Century Music v. Aiken, 422 US 151, 156 (1975).

In Eldred v. Ashcroft, the Supreme Court took on the idea sometimes made that there is some kind of bargain implied in the Copyright Clause. ⁴537 US 186, 214-17 (2003). It is not a quid pro quo, as the grant of patent rights entails. With copyright protection, “disclosure is the desired objective, not something exacted from the author in exchange for the copyright.” As explained by the Court, unlike patent law, “copyright gives the holder no monopoly on any knowledge. A reader of an author’s writing may make full use of any fact or idea she acquires from her reading.”

Access to Culture

At times, copyright’s critics argue that the purpose of the law is not only to increase the creation of new works, but also to increase the public’s access to those works. This argument only works if we expand the meaning of “access” to include not only the ability of someone to read, watch, or listen to copyrighted works — the number of outlets for getting legal content has exploded in recent years — but the ability to do so instantly, in as many formats as possible, for as close to free as possible.

The four dissenting Justices in Sony v. Universal City Studios warned against this idea of access. It’s “tempting,” they said, to reduce the scope of copyright protection to “permit unfettered use” by new technologies “in order to increase access,” but doing so “risks eroding the very basis of copyright law, by depriving authors of control over their works and consequently of their incentive to create.”

The Justices added these remarks from Abraham Kaminstein, Register of Copyrights during the run-up to the 1976 Copyright Act revision:

I realize, more clearly now than I did in 1961, that the revolution in communications has brought with it a serious challenge to the author’s copyright. This challenge comes not only from the ever-growing commercial interests who wish to use the author’s works for private gain. An equally serious attack has come from people with a sincere interest in the public welfare who fully recognize … ‘that the real heart of civilization… owes its existence to the author’; ironically, in seeking to make the author’s works widely available by freeing them from copyright restrictions, they fail to realize that they are whittling away the very thing that nurtures authorship in the first place. An accommodation among conflicting demands must be worked out, true enough, but not by denying the fundamental constitutional directive: to encourage cultural progress by securing the author’s exclusive rights to him for a limited time. ⁵464 US 417, 481, n.34 (1984).

Conclusion

The public, rather than copyright holders, is the true beneficiary of the law. It benefits by the creation of works that might otherwise not have been created, and by the exclusive rights encouraging dissemination. Julian Sanchez even notes this, saying, “We are all the massive beneficiaries of millennia of accumulated human scientific knowledge and cultural output, and not one of us did anything [to] deserve a jot of it.”

Barbara Ringer, the first female Register of Copyrights in the US, provides the best summary of the argument against claims that the public’s interest is underserved by copyright law. Her words, spoken over 30 years ago, are just as relevant today:

The 1909 Joint Congressional Committee, in its report No. 2223, made a statement which has been quoted many times and which I agreed with at one time, but which I have ceased to agree with.

I will paraphrase it. It was that copyright is not for the protection of the author, but for the public and that where the author’s interests and the public’s interests conflict, the author must yield.

This sounds great and for a long time, I felt that this was probably correct. But, the more I have looked upon the status of authors in this country and the fact that the public interest is badly served when authors are badly served, I have felt that too often the public interest has been identified with economic users rather than with authors.

In recent years, partly as a result of this whole revision exercise, I have been trying to gage individual issues in terms of their impact upon creativity and authorship, which I consider the ultimate public interest.

The Constitution speaks of the desirability of promoting the progress of science and useful arts, science in the broad sense of learning or knowledge, by offering protection for limited times to authors and inventors.

It seems to me that it is this protection, the exclusive rights that are supposed to be granted to authors, that is the ultimate public interest that the Constitution and its drafters were thinking about.

I do not think that this has ever been fully or even partly realized in any copyright law we have had in our entire history.

[…]

I think that the system that we have had has been based on the desire to induce dissemination, make works available to the public by offering protection to authors.

I think that this system is now subject to some difficulty because of the fact that the new technology has made it an absolute detriment to disseminate. In other words, an author in certain situations who lets the bird out of the cage, finds that there is no way to regain it, that once he has made a tape and it has been played over the radio or television, he finds suddenly it is being pirated or made in duplicates all over the country.

It is very, very difficult in that situation for him to realize any economic gain or reward for his creation and there may be situations in which he would prefer to keep his bird in its cage, so to speak.

I am speaking in terms of music, but I think the example is better in some areas where there is a more realistic possibility of exercising complete control.

The task of your committee, as I see it, is to try in some way to evaluate the impact of the new dissemination media on the basic task of giving authors a reasonable return and inducing them to let the work go out to the public. ⁶Copyright Law Revision Hearings Before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the Committee on the Judiciary, House of Representatives Ninety-Fourth Congress, First Session on H.R. 2223, pp. 116-17 (May 7, 1975).