This is a repost of my article that I published at MINCOV.COM April 27, 2010.
Ever since I started practicing in the field of intellectual property law, I have been an avid supporter of stronger copyright laws, in the sense that the law should provide an efficient tool for the owner of intellectual property to control its use by others, to the point of being able to legally prevent its unauthorized use altogether. For greater clarity, I do not differentiate between the need to protect the rights of authors and of subsequent owners of copyright, as long as the authors were not compelled to assign their rights by force.
Seeing where the world is going to, particularly in terms of piracy, I was becoming increasingly sad, thinking that the system of copyright is being systematically destroyed. It is easy to see why the collapse of intellectual property laws would be welcomed by those who engage in unauthorized use of others’ works, but I had been struggling to understand why the idea of significant curtailment of authors’ rights in favour of “the public” also finds its proponents among many prominent scholars1., who do not necessarily fit into the category of people downloading movies off torrent websites.
Only a few months ago, did the pieces of the puzzle come together for me. Only a few months ago did I realize that the current attack on copyright is simply a part of a larger picture. In this article, I will provide a simplified overview of the mental process that I went through to see the big picture.
It all started when, for various reasons, I had to do some research on a fundamental issue that most practicing lawyers (myself included, until recently) tend to treat as insignificant or too obvious. The issue is the one of the nature and justifications of copyright. Why do we have copyright laws at all?
From the inception of copyright, there have been two competing points of view on this.
According to one, rights to results of one’s creative activity come from God, or otherwise from the nature of man, or are otherwise akin to property rights. One of the most famous quotes reflecting this first approach belongs to Jean Le Chapelier. In 1791 in the Paris Assembly he said: “The most sacred, most personal of all the properties, is the work fruit of the thought of a writer […] so it is extremely just that the men who cultivate the field of thought enjoy some fruits from their work, it is essential that during their life and a few years after their death, nobody can dispose of the product of their genius, without their consent”2.. According to this approach, copyright laws are nothing more than a reflection of objective law that only requires the government to provide the means of its enforcement.
The second approach is to say that but for the grant from the government, authors have no rights. These rights are said to be granted by the government for the “public good”. Governments are prepared to tolerate authors having some rights, but only to the extent that it benefits the public. And as with any entitlement coming from the government, whatever the government gives, it can always take away.
Historically, the problem has been that proponents of each of these approaches tried to push forward their ideas by masking them behind ideas of their opponents. This resulted in a situation where none of the arguments actually made any sense.
Proponents of God-given theory tried to give as much protection to authors and at the same time to appease the proponents of the public good theory by claiming that the reason that monopoly rights should be granted to creator was because such monopoly rights would in fact benefit the society as a whole. But if the right is a virtue in and of itself, then we should not care whether it benefits the public. For example, we do not explain the virtue of protecting human lives by the premise that it would benefit the society as a whole if we did not allow killing people. It is irrelevant whether the society benefits from that or not, since the human life is seen as a virtue worthy of protection. The same principle should apply to copyright, if it is indeed regarded under the natural rights theory.
Conversely, the proponents of wide public rights often mask their conception behind an attempt to create a “balance between promoting the public interest in the encouragement and dissemination of works of the arts and the intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated).3.” Some have suggested that the “sole interest” of the government is to create a system that benefits the “society as a whole”4.. However, if this is true and if copyright laws are not primarily adopted to benefit creators, then, by implication, our only concern with creators’ interests is that such interests are not squelched to the extent that the resulting refusal of creators to create new works and make them available to the public, would actually harm the society more than the society would “benefit” from freely using someone else’s intellectual property. However, the provision of a bare minimum of food by a master to his slave, only sufficient for the slave not to die and to keep working, can hardly be called a “balance of interests”. In a way, this “balance of interests” in relation to copyright can be analogized with the state’s obligation to protect a person from having his property forcefully taken away, provided that such a person agrees to part with this property voluntarily.
Having noticed this inconsistency, but unable to untangle it, I looked up copyright laws of many countries. Invariably these laws are structured in a way to give authors an exclusive right to use their works as they please and to authorize others to do so. What does an exclusive right mean? It means a right to use the work to the exclusion of all others. Now, if governments were creating copyright laws for the benefit of the whole public, how is it that they did it by granting a monopoly to those who could severely limit the public's use of their works through the use of this very monopoly?
There are no other examples when the public benefit is ensured by providing a nearly absolute monopoly to a group that opposes the rest of the public. Governments did not create private property on land to benefit the homeless. Neither was the private property on crops introduced to benefit the hungry. If it was not the intention of governments to vest such a tremendous tool for control and monopoly in the authors, why are all such laws invariably written in a way that allows no other interpretation?
The mere fact that copyright laws are indifferent to the value of the works they protect (i.e. works receive copyright protection regardless of their artistic merit) should serve to disprove that copyright is created for the benefit of the public. If a work holds no value to the public, why would governments be concerned to grant the author of the work with a monopoly in respect of the work? Or is it just the opposite – that copyright should only protect works that nobody wants to use?
The next thing I did was I looked back at the history of the Soviet Union. It had copyright laws that, in fact, were written to benefit the public. Authors only had the right of first sale with no further right of control as to how their works are used afterwards. In vast majority of cases, it was the government that was the first buyer. Also, authors had the right to receive a “fair” remuneration for subsequent use of their works and the right to have their name mentioned every time their works were used. And, of course, it was the government that decided what was fair.
The Soviet model of “copyright” gave birth to many great works of art without vesting substantial rights in creators. It did not exactly result in all authors refusing to make their works available to the public. So I agree with those who don’t buy the argument that weak copyright will necessarily mean that people are not going to create. However, even a superficial analysis of the structure of creativity in the Soviet Union would reveal that it was based the following factors.
Authors received substantial benefits from the socialist government if they created what the government wanted them to create. That’s why there were so many operas, symphonies, cantatas, plays, stories and songs about Lenin and communism.
Second, the system abused authors’ love of the process of creation. When one is truly gifted, then the ability to create becomes more important than the urge to make a political statement by refusing to create. Many authors are forced to believe that their art is the only thing that they are good for. The socialist government offered creators a “deal” – they were allowed to create on the condition that they would have no right to control their works. By depriving authors of any say in how their works are used, the government punished authors for their virtue, for what they do best. This “deal” would have been impossible with those for whom the act of creativity is meaningless. This is very similar to how most countries today are punishing the rich for being so industrious. We tax them to death, but expect them to continue working because we know they love their work and because they are good at it.
Finally, the system would prevent emigration from it. Remember the Berlin wall? Remember Cuba? Remember the Soviet Union? Why is it so many people were risking their lives to emigrate? It was because the socialist government understands that as soon as a talented person is allowed to exercise their free will and to enjoy their freedoms, they will never go back to being spoon-fed by the government in return for giving up of these freedoms.
My father is a famous Russian composer who has composed music for over 100 movies. I asked him what it was that changed for him when the Soviet Union finally collapsed and Russia adopted copyright laws that were like most other copyright laws on the planet. From the creative point of view, there was not much difference. The only aspect that did change substantially is that the “true” copyright law provided a mechanism to control how the works are used, an opportunity to make decisions for oneself. The ability of the author to capitalize on this opportunity is a separate issue. This is the beauty of the free market system, in that it gives every one the right to fail and to succeed.
The Soviet system removed the element of opportunity. It was the government that decided for the authors what is a sufficient and fair remuneration for them. It was the government that decided what stories were printed throughout the country, what lyrics were put in songs and so on. The best example is how the Soviet censorship turned a song about an American cowboy into a song with no lyrics, thus creating what became a recent obsession, Trololo5..
The system worked ONLY as an integral part of the overall socialist nightmare. As soon as the socialist experiment reached its only possible result by destroying the country’s economy and, most importantly, the spirit of the people who live there, the government-fed copyright became unworkable. Free market economy (even its corrupted Russian version) cannot exist with the government telling everyone what and for how much they must create and license.
Today’s attack on copyright is simply one piece of the puzzle. The whole puzzle is the attack on free market and individual rights. The whole puzzle is the Great Socialist Evolution that has corrupted the Western world through various entitlement programs and indoctrination to the effect that the government can and should regulate everything and redistribute the wealth. The more entitlements people have, the harder it is to convince them that this model is unsustainable. Just as Margaret Thatcher said: “The problem with socialism is that eventually you run out of other people’s money”6..
Nothing that must be produced by another’s labour is a “right”. Housing is not a right. Health care is not a right. Use of someone else’s music is not a right. Let me illustrate this idea by the example of health care. If tomorrow all doctors exercised their free will and decided to quit, the government would have to enslave a group of people and force them to provide medical services that the government has determined is a “right” to all. In fact, this is exactly what was happening in the Soviet Union, where one went to jail if one was not employed.
Combining these pieces of the puzzle together, I realized that it is childish to only fight for stronger or weaker copyright laws. Copyright laws are nothing but a function of the political regime. Strong copyright laws cannot exist in a country that is giving away unearned entitlements to the undeserving and that is punishing those who create value for the country. Even the best imaginable copyright act (however subjective that may be) would not make a difference in this situation. If your car is falling apart, losing parts as it goes, it won’t be much help to install a new stereo in it.
I do not believe that anyone has a right to use another’s works without permission or in contravention of limitations that the copyright owner had imposed on their works. A man who creates something which had not existed before is free to pursue ANYTHING in return for it. He did not create the work for the society to determine the terms of how it is going to be used. He did not create the work for the enjoyment of the society. He created the work in an attempt to achieve his personal goals, be it the joy of a hobby, fame, goodwill, wealth or something else. It is up to the author to determine the terms on which he would allow the society to use his work. If he wishes to allow the public to freely use the work, nothing prevents him from making such a disposition.
But I hold this belief as part of my overall convictions that no one has a right to anything created by someone else. The dispute should be not about whether we need stronger copyright laws or whether we should be expanding exceptions from copyright. The issue is whether we are to subordinate individual rights to mythic “public interests” and the “benefit of society as a whole”. Copyright, as much as I love it, is just one card in the deck. I hope this article will help the readers better see the game that is being played with these cards and make their own decisions.
1. You all know who they are
2. Report of Le Chapelier to the French Assembly, 1791
3. Théberge v. Galerie d'Art du Petit Champlain, 2002 SCC 34,  2 S.C.R. 336, 210 D.L.R. (4th) 385, at para. 30.
4. William Patry, Moral Panics and the Copyright Wars (Oxford: Oxford University Press, 2009) at 123.
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