# a blog about things that I've been thinking hard about

# There Are Two Distinct Justifications of Copyright. Please Choose Just One. And Please Tell Us Which One You Chose.

9 May, 2013
The two distinct justifications of copyright are the creation-ownership justification, and the public benefit justification. Much of the "copyright debate" is really a debate about which of these two justifications takes priority.
by Philip Dorrell

## Copyright Law Should Optimise Public Benefit. Or Should It?

In 2002, Richard Stallman published his essay Misinterpreting Copyright, which explained, fairly clearly I think, that copyright law should be based on the criterion of public benefit.

So, what happened? Did we all read that article, and agree that the form of copyright law should be determined by the maximisation of public benefit? Was copyright law reformed so that public benefit was maximised?

### Eternal Copyright and the Irrelevancy of Public Benefit

What actually happened is that none of those things happened. What actually happened is that copyright law changed in ways that appeared to reduce public benefit. For example, the move to eternal copyright. "Eternal copyright" is where copyright terms are not actually infinite, but they are constantly increased whenever existing copyrights are about to expire.

Eternal copyright is just one tiny part of the "copyright wars". But it is symptomatic of what seems to have gone badly wrong – it's not just that copyright law reform has failed to take account of public benefit; apparently public benefit is actually irrelevant to decisions made about copyright reform.

How can this be?

As a citizen of the world, I am bothered by the observation that the people of the world have somehow agreed upon an international legal framework, and this legal framework has some purpose, but whatever that purpose is, it's not to benefit the people of the world.

Sometimes, when I advocate for copyright reform based on public benefit, I receive quite a strong reaction. This reaction comes, as you might imagine, from copyright holders. Copyright holders aren't just big mega-corporations and associations of mega-corporation lobbyists. Some of them are individual creators, who feel, quite naturally, personally robbed by the failed enforcement of copyright law, and even more threatened by proposals to alter copyright law in some way to favour the interests of the general (content-consuming) public.

These individuals reject the public benefit criterion out of hand. To them, if copyright law is reformed for the benefit of the general public, then that reform will itself be an act of "theft", depriving them of what is rightfully theirs.

## Two Different Justifications

Now if we are to have a form of copyright law that is not justified by a criterion of public benefit, then it must be justified by something else.

And given that the form of copyright is largely determined by the actions of politicians in democratic Western countries, and those politicians are largely (if not entirely) driven by considerations of voter preference, we must consider that most people in democratic Western countries accept this alternative justification, apparently, at their own expense.

So, what is the second justification?

In the spirit of science, I have formulated a hypothesis about the justifications of copyright. I believe this hypothesis explains every observable aspect of the copyright "wars": what people and organisations say publicly about copyright, how people behave privately with regard to copyright, and how copyright law gets reformed, or not, as the case may be.

This hypothesis consists of the following assumptions:

- There are two major justifications of copyright. (If you think you know a third one that I've missed, please drop me a line.)
- The first justification is the public benefit justification. That is, we have copyright because it benefits the general public, and the optimal form of copyright law is that which maximises public benefit.
- The second justification is what I will call the creation-ownership justification. In this justification, copyright becomes a moral principle in itself: when a creator creates some "work", that work would never have existed if the creator had not created it, therefore the creator is entitled to control the making of copies of that work, even after that work has been distributed to the general public. So, in practice, if I sell a copy of my newly created work to Jim, Jim cannot just give a copy to his friend Bob, because that prevents me from making money from my creation by selling it separately to Bob.
- The general public accepts, at their own expense, the priority of the creation-ownership justification over that of the public benefit justification.

We can see how these assumptions explain the mystery of eternal copyright:

- Extension of copyright terms applied to existing copyrights provides a negative public benefit: the works in question have already been created, so the benefits of an increased copyright "incentive" are irrelevant, and the copyright extension prevents the frictionless development of new creative works derived from existing creative works. (All of this has been explained in plenty of detail elsewhere.)
- According to the creation-ownership justification, copyright holders deserve to own the right to control copying of their works because they created them, and if you deserve to own something, then there is no reason why that ownership should ever be taken away from you.
- The public accepts that the creation-ownership justification has priority over the public benefit justification.
- Therefore, copyright terms will always be extended before they expire.

## The Bad Guys, The So-Called "Copyright Monopoly"

"We have found the enemy, and he is us".

One implication of my hypothesis is that the general public has been given, and continues to be given, a copyright system which is not designed to maximally benefit the general public, and the ultimate cause of this is ... the general public – because they believe in the moral priority of the creation-ownership justification over the public benefit justification.

However, I may be alone in believing that the general public are to blame for bad developments in copyright law.

A popular alternative is to believe that any badness in the copyright system is the result of bad and powerful people doing bad things. The copyright "war" becomes a war against the powerful bad guys, or as Rick Falkvinge likes to call them, the "Copyright Monopoly". (Falkvinge loves to talk about the Copyright Monopoly, a name that doesn't quite make sense, because each individual copyright is a monopoly, in the technical sense, and indeed that is one of the bad things about copyright, but there is no such thing as a single "copyright monopoly".)

## If There Are Two Justifications, Why Can't I Use Both Of Them?

In the world of debating, one justification for your proposition is a good thing, and two justifications must be better.

The problem comes when the two justifications conflict in some circumstances. In arguing for your case, you may choose to use whichever justification best suits one part of the argument, and then switch to the other justification which better suits a second part of the argument. But it might be that if you fully considered both justifications for all parts of the argument, you would have to argue against yourself.

Also, the two justifications of copyright that I have described are not just "justifications", they are also criteria for optimality. In other words, we can ask "What is the optimum form of copyright?", and each of the two criteria may tell us a completely different answer. For example, if we consider the question of eternal copyright, the creation-ownership justification tells us "yes", and the public benefit justification tells us "no".

## What about "Balance" (or Mixture)?

We cannot use two different criteria simultaneously, but we could perhaps consider some mixture of criteria. This is almost (but not quite) the same as "balance". Stallman, in Misinterpreting Copyright, rejects the notion of balance, and gives his own detailed explanation of why we should reject balance, his primary assumption being that public benefit is the only thing that should matter, and that in as much as creators are part of the general public themselves, they are a very small portion of the general public, and to a first approximation their existence can be ignored. (Also, to deal with possible accusations of discrimination against a chosen minority, one notes that nobody actually has to choose a career as a content creator.)

### The difference between "balance" and "mixture"

The difference between balance and mixture is that with balance you separately optimise for each of two criteria, and then you choose a position somewhere between each of the two optimal positions, whereas with mixture you mix the criteria (somehow), and calculate one optimised position for that mixed criterion.

The "balanced" position isn't necessarily optimal for any criterion, unless we perhaps define "balance" itself as being something to be optimised. The optimal value for a mixed criterion is optimal for something, but the question then arises as to how we should correctly mix our original two criteria, and in particular what percentage each should contribute to the final mixture.

### The real problem with simultaneous consideration or balance or mixture

The real problem with introducing the two different justifications into any debate about copyright is that it constantly confuses what it is we are arguing about.

I think you will notice, in some of the sections below, that when I clearly separate arguments depending on the two different justifications, it becomes much easy to follow the logic in each case.

## Prescription: Identify Your Justifications in Advance

To make progress in the "copyright debate", we need to explicitly identify our basic moral assumptions, at all times. In particular, we should always state whether a given argument for or against is referring to the public benefit justification of copyright, or to the creation-ownership justification.

For example, when Rick Falvinge talks about "commonly-debunked arguments of the copyright industry", he is almost certainly referring to arguments debunked relative to the public benefit justification.

And when copyright holders tell us that the general public just wants to "take without paying", they are implicitly referring to the creation-ownership justification.

And because neither party admits or states these alternative justifications, they both assume that the other is talking rubbish, and they happily ignore each other. And the copyright debate does not progress anywhere.

## Second Prescription: If You Only Accept One Justification, You Must Explicitly Declare Your Rejection of The Other One

It is not enough to identify your basic assumptions, and to avoid freely switching between them as you make your arguments.

If you primarily accept only one of the two justifications of copyright, then you must explicitly reject the other justification.

### For those who believe in the public benefit justification...

If you accept only the public benefit justification, then you must say something like:

> I believe that copyright law should be based on criteria of public benefit. It follows therefore, that content creators do not have any intrinsic moral right to assert any rights of "ownership" of content which they have created and which they have also publicly published, unless those rights are fully consistent with maximising public benefit.

(It is worth mentioning the distinction between "copy rights" and "attribution rights". It is almost certainly in the public interest that authors should always be correctly attributed authorship of their works. No matter how much copyright might be reformed, and "unauthorised copying" is made legal, it is unlikely that it will ever be legal to fraudulently claim authorship of someone else's work.)

Even worse than that, you might also have to say something like:

> If some content creators don't like working under the conditions of copyright law which has been reformed in order to maximise public benefit, then those creators can go get a job doing something else. And it is up to the public to decide whether or not the consequent reduction in professional content creation is a problem that needs to be dealt with.

### For those who believe in the creation-ownership justification ...

If you accept only the creation-ownership justification, then you must say something like:

> I believe that copyright law should be based on the creation-ownership justification, that content creators deserve to have the right to fully control all copying of their content, even after they have publicly published their content. They have this right because they created that content, and it would not have existed without their effort to create it. It follows that content creators should have this right to control copying, even if it makes the general public substantially worse off, giving them less content, making them pay more for it, and even if it substantially reduces the total amount of content that is created (for example due to restrictions on the creation and distribution of derivative works).

My guess is that nobody will feel comfortable making any of these declarations. But until we start making them, we will continue to talk past each other, and nothing will get any better.

## "I enjoy the benefits of piracy, even though I know it's wrong"

I stated earlier that the general public is apparently to blame for the developments in copyright law which are against the interests of the general public.

This makes it seem that the general public is unselfishly unconcerned with its own interests.

But this isn't quite true.

If the general public wants to enjoy the benefits of unconstrained file-sharing, they don't need to reform copyright law. Because the law has largely ceased to be enforceable.

So people don't agitate for the legalisation of file-sharing, because all they need to do is file-share. They can file-share using BitTorrent (scary, I know), or using USB sticks and portable hard-drives, or even just on YouTube.

And everyone can enjoy the benefits of piracy, even those people who don't pirate themselves (I don't myself, honestly!).

The reason that everyone enjoys the "benefits" of piracy, even the non-pirates, is that all the "legitimate" content distribution services are forced to compete with "free". Music singles no longer cost $3 each (or $20 if the single is only available in an album). New bands aggressively make their music available for free on YouTube, because that's the only way to promote themselves, and if they don't put their own music on YouTube then someone else will, and like, who can be bothered hunting down copyright infringements and issuing takedown notices all the time? And bands offer free downloads of their music, to promote their concerts (which they can still charge for), rather than vice versa.

So even if you think you are not "guilty" of enjoying the benefits of piracy, well, actually, unless you still get all the music that you listen to by buying CDs at a music store (if you can find one), then actually you are guilty.

## A New Morality?

Both of the two justifications of copyright have their own moral basis. We seem to be in a situation where two different moral imperatives are telling us to do different things.

However, such a moral conflict cannot last forever. If we (i.e. the general public) eventually decide to reform copyright law to give absolute priority to public benefit, then our conception of morality will change also. That is, we will no longer consider it a "moral right" of authors to control the copying of published content. We may still consider authors to have other "moral rights", for example, "attribution rights", but the concept of "copy rights" will disappear from our moral universe.

It can be difficult to imagine morality changing, because if we imagine a future world with different moral rules, then subjectively it feels like an immoral future world. But morality does change, and after it has changed, we think about the past, and then the past world feels immoral (this results in those historical Hollywood movies where the "bad guys" follow the moral precepts of the historical period, but the "good guys" follow different moral precepts which are suspiciously modern).

## Dependence on Circumstance

### The Creation-Ownership Justification Does Not Depend on Anything

The creation-ownership justification of copyright depends on the simple proposition that creators deserve to own what they create. This principle does not depend on any external circumstance – it does not depend on the time, or the place, or the type of content, or on available technologies.

### The Public Benefit Justification Depends on Everything

The public benefit justification of copyright is intrinsically pragmatic, and the conclusions that we might come to about the optimal form of copyright are highly dependent on everything else, including time, place, content type and available technologies.

### Why Copyright Law Should Never Change

If we accept the creation-ownership justification of copyright, then there is no reason for copyright law to ever change. Copyright was a good idea when they thought of it. It would have been a good idea even earlier, but unfortunately they hadn't thought of it yet. It continues to be a good idea now, and it will always be a good idea in the future.

Because of this unchanging nature of the creation-ownership justification of copyright, one can freely use past examples of copyright as justifying copyright in the present and in the future. (But there is a gotcha here – if you refer to the public benefits of copyright in the past, you have switched justifications, in which case see the next section.)

Copyright is a good idea wherever you are, be it in Europe, or America, or some far-flung continent like Africa or Antarctica.

Copyright is a good idea for all types of content. The only thing that needs to happen when a new type of content appears is to have some new case law where the judge clarifies that the new type of content does deserve to be considered "content" under existing copyright law (think video games, or software in general).

Copyright is not affected by the appearance of new technologies. It is illegal to make an unauthorised copy of a vinyl record, and it is just as illegal to copy an MP3 file without permission from one computer to another.

Of course new technologies might somehow increase the ease with which existing copyright law can be broken, so it might be necessary to introduce new laws which ban the use of those new technologies, or it might be necessary to mandate the introduction of new mechanisms for preventing and/or punishing illegal copyright infringements.

### Why Copyright Law Has To Change

If we accept the public benefit justification of copyright, then the optimal form of copyright will change all the time.

In practice, most of the changes in how the public benefit justification determines the optimal form of copyright are the result of changes in technology.

Eventually, because new technologies constantly alter the equation of public benefit in favour of less and less control, we will reach a stable state where there are no prohibitions on private copying of digital content, and there are no prohibitions even on the creation of derivative works, except perhaps for prohibitions on derivative works that are considered undesirable for reasons unrelated to copy-control (like the derivative author failed to acknowledge the contribution of the original author, or the derived work is overly offensive in a manner that reflects badly on the original author).

Once that stable state has been reached, there will be no further need to change copyright law (which might still be called "copyright law", but people will wonder why it has such a quaint name).

#### What Piracy has taught us about how we should change copyright.

Content "piracy" used to be a criminal speciality, just like bank robbery, or kidnapping for ransom.

But now, with computers and internet, it is something that everyone can do, and with better odds of "getting away with it" than bank robbers and kidnappers. And many people do do it (but not me, honest!).

And we notice, that as a result of piracy, we get a whole lot of stuff for free, and, very strangely, they ("they" being the creators) still make new stuff, even though we were told they would stop making stuff if they didn't have absolute copy-control in order to make us pay.

We even notice that we get some free content which would not exist at all if copyright was strictly enforced – stuff like YouTube "covers", and Adolf Hitler parodies, and most Internet "memes".

Which leads us to wonder, purely on the basis of empirical evidence, if the world might not be a better place if we didn't have copyright. Or we could still have some copyright, but it would be much more limited, so that, for example, there would be no restriction on the private redistribution of published digital content.

## Patents

Richard Stallman tells us that we should not talk about "Intellectual Property", because it's an overly abstract concept that confuses distinct legal concepts.

But there are many similarities between copyrights and patents, and in particular patents have the same justificational dichotomy as copyrights – there is a public benefit justification (patents give incentives to invent which is good for everyone) and a creation-ownership justification ("I created this invention, so I should own it").

There are some subtle differences between copyright and patents when it comes to considering these justifications.

One difference is that the creation-ownership justification for copyright assumes that not only did you create your "work", but that your work is sufficiently large that it is very unlikely that anyone else would ever have created it, even in the future. Whereas, for patents, there is no attempt to prevent a patent being granted based on likely future invention by some other inventor. Indeed there are sometimes "races to the patent office" to see which of two inventors gets the patent when they both invented the same thing at almost the same time. The limited term of patents (currently 20 years for all new patents) can be understood as an explicit concession to the likelihood that most patent inventions would eventually have been invented by someone else.

But apart from such minor differences, most of what I have said about the "copyright debate" also applies to the "patents debate". That is, there are two distinct justifications, these justifications are not equivalent, and anyone making an argument should always make clear which justification they are basing their argument on.

## Analysis

Inevitably, despite my entreaties, those debating copyright and patent will continue to make arguments without stating their basic moral assumptions.

But, we can partially remedy this, because we can analyse their arguments, sentence by sentence, word by word if need be, and we can label each part of every argument with what we believe to be the implicit moral assumptions in each case.

To get you started, here is an example where I analyse the following paragraph written by our friends at WIPO, taken from their page about Copyright and Related Rights, which they have kindly granted us permission to use:

> Copyright and related rights protect the rights of authors, performers, producers and broadcasters, and contribute to the cultural and economic development of nations. This protection fulfills a decisive role in articulating the contributions and rights of different stakeholders and the relation between them and the public. The purpose of copyright and related rights is twofold: to encourage a dynamic creative culture, while returning value to creators so that they can lead a dignified economic existence, and to provide widespread, affordable access to content for the public.

And here is my blow-by-blow analysis:

Copyright and related rights protect the rights of authors, performers, producers and broadcasters,
This reference to "copyright and related rights" protecting "the rights" is a bit circular, but we can take it as an assertion that copyright is a pre-existing moral principle that must be protected by having copyright as a legal principle. So that is based on the creation-ownership justification.
and contribute to the cultural and economic development of nations.
This is an appeal to the public benefit justification.
This protection fulfills a decisive role in articulating the contributions and rights of different stakeholders and the relation between them and the public.
It's a bit hard to figure this one out (how does a "protection" "articulate"?). The reference to "contributions and rights" can be read as an oblique reference to the creation-ownership justification, in the sense that "I made a contribution when I created this work, and in return for that I get certain rights".
The purpose of copyright and related rights is twofold:
This is just the introduction in the sentence, but notice that they actually list three purposes.
to encourage a dynamic creative culture
A supposed public benefit that would never occur without copyright (although the existence of a dynamic creative culture is not quite the same as everyone actually being able to enjoy that dynamic creative culture).
while returning value to creators so that they can lead a dignified economic existence,
This is almost, but not quite, an assertion of the creation-ownership justification – it is actually an assertion that creators should be paid, without being too specific how or why (it does imply the existence of some group of creators who would be living an "undignified existence" if there wasn't any copyright – it's not mentioned whether or not they could have achieved a more "dignified existence" by getting a different job).
and to provide widespread, affordable access to content for the public.
This looks like an appeal to the public benefit justification. However, one notes that "widespread, affordable access" is not the same as "cheapest possible access to the most possible content", so public benefit is not being maximised. Rather it is a concession to the public that there will be some public benefit (presumably relative to some alternative legal system which would make content even more expensive than it is under the copyright system, or perhaps it is assumed that without copyright there would be no content, so consider yourselves lucky if you get some content and it is "affordable").
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