The Case for Copyright Reform (8 page)

Thus, the very first foundations of modern democracy and civil liberties
were won in the battle against the copyright monopoly. There is nothing new
under the sun.

1800s: Reading Books Without Paying? That’s
Stealing!

When the United States was founded, the concept of monopolies on ideas
was carried to the New World and debated intensely. Thomas Jefferson was a
fierce opponent to the monster of monopolies on ideas. A compromise was
reached.

Copyright didn’t originate in the United States, as we have seen. The
idea had been there beforehand and the Founding Fathers carried the laws with
them into their new country. The topic of monopolies on ideas, however, was a
topic not easily settled.
Jefferson
wrote
:

If nature has made any one thing less
susceptible than all others of exclusive property, it is the action of the
thinking power called an idea, which an individual may exclusively possess as
long as he keeps it to himself; but the moment it is divulged, it forces itself
into the possession of every one, and the receiver cannot dispossess himself of
it. Its peculiar character, too, is that no one possesses the less, because
every other possesses the whole of it. He who receives an idea from me,
receives instruction himself without lessening mine; as he who lights his taper
at mine, receives light without darkening me. That ideas should freely spread
from one to another over the globe, for the moral and mutual instruction of
man, and improvement of his condition, seems to have been peculiarly and
benevolently designed by nature, when she made them … incapable of confinement
or exclusive appropriation.

In the end, the United States Constitution was the first one to specify
the reason for copyrights (and patents!) to be granted. It is very clear and
straightforward in its justification for the existence of copyright in United
States law:

…to
promote the progress
of
the sciences and useful arts…

It is particularly notable that the purpose of the monopoly was not for
any profession to make money, neither writer nor printer nor distributor.
Instead, the purpose is exemplary in its clarity: the only justification for
the monopoly is if it maximizes the culture and knowledge available to society.

Thus, copyright (in the US, and therefore predominantly today) is a
balance between the public’s access to culture and the same public’s interest
of having new culture created. This is tremendously important. In particular,
note here that the public is the only legitimate stakeholder in the wording and
evolution of copyright law. The monopoly holders, while certainly being
beneficiaries of the monopoly, are not legitimate stakeholders and should have
no say in its wording, just like a regiment town should have no say in whether
that regiment is actually needed for national security.

It is useful to point at the wording of the US Constitution when people
falsely
believe that the copyright monopoly exists so that artists can make money. It
never did, not in any country.

Meanwhile in the United Kingdom

In the meantime in the United Kingdom, books were still quite expensive,
mostly because of the copyright monopoly. Book collections were only seen in
rich men’s homes, and some started benevolently to lend books to the common
people.

The publishers went mad about this, and lobbied Parliament to outlaw the
reading of a book without first paying for their own copy. They tried to outlaw
the public library before the library had even been invented.
“Reading without paying first? That’s
stealing from the authors! Taking the bread right out of their children’s
mouths!”

But Parliament took a different stance, seeing the positive impact of
reading on society. The problem perceived by Parliament was not the
self-described eternal plight of the copyright monopolists, but the problem
that rich men in society dictated who would read and who wouldn’t. It seemed
beneficial to society to level the playing field: to create public libraries,
accessible to poor and rich alike.

The copyright monopolists went absolutely ballistic when they heard
about this idea.
“You can’t let anybody
read any book for free! Not a single book will be sold ever again! Nobody will
be able to live off their writing! No author will write a single book ever
again if you pass this law!”

Parliament in the 1800s was much wiser than today, however, and saw the
copyright monopolists’ tantrum for what it was. Parliament took a strong stance
that public access to knowledge and culture had a larger benefit to society
than the copyright monopoly, and so in 1849, the law instituting public
libraries in the UK was passed. The first public library opened in 1850.

And as we know, not a single book has been written ever since. Either
that, or the copyright monopolists’ rant about nothing being created without a
strong monopoly was as false then as it is when repeated today.

(Note: in some European countries, authors and translators get some
pennies for every book lent from a library. It should be strongly noted that
this is not a compensation for an imaginary loss of income, as if every
reduction in the monopoly required compensation, but a national cultural grant
which happens to measure popularity and therefore suitability for that grant using
statistics from libraries. Besides, the grant appeared in the early 1900s, long
after libraries.)

Meanwhile in Germany

Germany had no copyright monopoly during this time.
Several
historians argue
that this led to the rapid proliferation of
knowledge that enabled Germany to take the industrial lead over the United
Kingdom – knowledge could be spread cheaply and efficiently. So in a way,
Germany’s leapfrogging of the United Kingdom proved the British Parliament was
right: The national interest of access to culture and knowledge does supersede
the monopoly interest of the publishers.

Late 1800s: Moral Rights On The Continent

In the late 1800s, the publishers’ ever-strengthening copyright monopoly
had lopsided the creators’ chances of making any revenue from their works.
Basically, all the money went to publishers and distributors, and creators were
left starving, due to the copyright monopoly. (Just like today.)

A person in France named
Victor
Hugo
would take the initiative to try to level the playing field by
internationalizing a French tradition known as
droit d’auteur,
“writer’s right”, into the copyright monopoly.
Also, he would try to make the copyright monopoly international: until now, it
had just been a national monopoly. A French writer could sell his monopoly to a
French publisher, and the publisher would enjoy monopoly powers in France, but
not in Germany or the United Kingdom. Hugo sought to change this.

Paradoxically, the copyright and patent monopolies were forgotten when
free market laws were enacted across Europe in the mid-1800s. Patent law still
talks about “prevention of disloyal competition” as justification for its
existence, which is a remnant from when guilds dictated products, craftsmen,
and prices. If a business practices
loyal
competition
in their industry segment today, we raid them at dawn and haul
their ass to court. The copyright monopoly is a similar remnant from the
printing guild of London.

Victor Hugo would try to balance the immense powers of the publishers by
giving creators some rights under the copyright monopoly as well, unfortunately
impoverishing the public further. (It is important here to remember that
there are
three parties
to the copyright conflict: creators, publishers, and
the public. Ironically, the publishers, who are the party least necessary to
sustain a culturally rich society, are the ones with the by far strongest
position in the monopoly’s design.)

While Hugo didn’t live to see the fruition of his initiative, the Berne
Convention was signed in 1886. It said that countries should respect the
copyrights of other countries, and an agency — BIRPI — was set up
as watchdog. This agency has mutated, grown and swelled and is today WIPO,
which
still
oversees
the Berne Convention, which has also swelled, mutated and
been hijacked twice. (More on this in the next section.)

So, at this point, there are four aspects of the copyright monopoly,
which have more differences between them than similarities:

1. The commercial monopoly
to fixations of a work. This is the original monopoly
granted to London’s printing guild in exchange for censorship.

2. The commercial monopoly
to performances of a work. If somebody performs a
work publicly on a for-profit stage, the monopoly holder has a right to demand
money.

3. The
droit
moral
to be acknowledged
as
creator. The right for an author or artist to be acknowledged as creator of his
or her work, acting as protection against counterfeiting and against
plagiarism.

4. The
droit
moral
to veto an improper performance
of the work. If an artist feels that a performance slights the work or
the name of the artist, they have the right to deny that performance the light
of day.

The
droits morals
are very
different in nature from the commercial monopolies in that they cannot be sold
or transferred. This sets them sharply apart from the justification that
convinced the British Parliament to re-enact the copyright monopoly in 1709.

It is also noteworthy how often these four aspects are deliberately
confused to defend the most controversial and damaging of the monopolies, the
commercial monopoly on fixations (and later duplication). You will often hear
people from the copyright industry defending the monopoly by asking “would you
want somebody else to take your work and claim it was theirs?”. However, this
is the quite uncontroversial third part, the droit moral of attribution and
credit, which cannot honestly be used to defend any of the two commercial
monopolies.

The United States didn’t like moral rights, by the way, so they stayed
outside of the Berne Convention until they could use it for leverage against
Toyota a hundred years later. We’ll return to that later.

1930s: Hijacked By The Record Industry

During most of the 20th century, a battle of prominence raged between
performing musicians and the record industry. For most of the century,
musicians were regarded as the important party in law and in common sense.
However, the record industry would rather see music under corporate control.
Active intervention by the selfdeclaredly fascist regime in Italy tipped the
scales in this direction.

Copyright in the 20th century was not characterized by books, but by
music. The 1930s saw two major developments that affected musicians: the Great
Depression, which caused many musicians to lose their jobs, and movies with
sound, which caused most of the rest of musicians to lose their jobs.

In this environment, two initiatives were taken in parallel. Musicians’
unions tried to guarantee income and sustenance to the people who were now
jobless. Unions all over the West were concerned about the spread of
“mechanized music”: any music that isn’t performed live and therefore didn’t
need performing musicians. They wanted some power over the speaker technology,
and the question was raised through the International Labour Organization (a
predecessor to the
UN agency
with the same name
).

At the same time, the record industry tried to exert the exact same
power over speakers, radio and musicians. However, the entire political and
business world at that time regarded them as a service contractor to the
musicians. They could go about running their business if they were
service-minded enough, or go bankrupt trying, and weren’t worth diddlysquat more
than that to anyone. Anyone, with just one exception:

Fascist Italy.