# propositional writing

# A Copyright Skeptic's Manifesto

Philip Dorrell, 11 January 2012

For those who "believe" in copyright, copyright as it currently exists is inherently a good thing, and the only problem to be solved is to make it "work" by successfully preventing all or most copyright infringement.

This conservative belief in the validity of copyright and the righteousness of unlimited copyright enforcement seems to dominate most public discussion about copyright, particularly as reported in the mainstream media. (Is the mainstream media actively suppressing discussion about copyright reform, or is it just too boring and technical to be interesting to their readers?)

The purpose of this manifesto is to state some propositions – together with explanations of why they hold true – which challenge this dominant point of view.

Some of the items in this manifesto are based on ideas originally discussed by Richard Stallman in his essay Misinterpreting Copyright - A Series of Errors.

Also, see below for notes on terminology (with regard to the use of the terms "author" and "society").

- Copyright is not a natural right of authors.

  Copyright is a human invention. It exists if society decides that it should exist. 1

- The payment of authors is not a natural right of authors.

  It might seem only fair that everyone who does useful work should be paid. But this is not how modern market economies work. People get paid for work if they can find someone willing to pay them for that work.

  Copyright is a contrivance which attempts to force consumers to be willing to pay in exchange for the "right" to own copies of authored content. However copyright itself imposes costs on society as a whole, and society as a whole must decide if it is willing to "pay" those costs in return for the alleged benefits. 2

- There is no "balance" between the interests of authors and consumers.

  There is only "balance" between the costs and benefits of copyright to consumers. "Authors", in the sense of content producers who strongly depend on copyright for the receipt of payment, are a very small minority, and their personal interests are proportionally unimportant.3 Furthermore, no one is required to be an author.

- The existence of copyright should be a consequence of public benefit, not the other way round. The optimal form of copyright is the form of copyright which best serves the public interest. 4

  Often the defenders of copyright (as it exists now) state the existence of copyright as a natural right of authors, and then point out the beneficial side-effects of copyright to consumers as an incentive for authors to produce quality content which consumers can choose to purchase, typically for an "affordable" price. If we put the public benefit first, then we can legitimately ask whether the availability of a certain amount of "quality" content purchasable at an "affordable" price, regardless of any other consequences of the enforcement of copyright, is actually an optimal output for the consuming public.

- The optimal form of copyright may change over time, as the factors determining the costs and benefits of copyright may change over time.

  The development of computer and internet technology has enabled a significant portion of the world's population to engage in the free sharing and distribution of digital content. Such sharing and distribution was not previously possible, so the conflict between the enforcement of copyright and the optimal use of computer and internet technology did not exist. Now that we do have computers and internet, we need to reconsider the costs and benefits of copyright.

- "Attribution rights" are distinct from "copying rights", and can more convincingly be considered to be a "natural right" of authors.

  To falsely claim authorship about a work is to be dishonest, and to deprive the true author of whatever rights society might accord to that author as a consequence of their authorship. It is difficult to imagine any possible society where falsely claiming authorship of a work is considered to be morally acceptable.

  However, the right of authors of claim authorship is separate from any right they may have to prevent copying of their works. The immorality and undesirability of false claims of authorship is not a valid argument in favour of copyright.

- As a society, we have the option to retain copyright for its benefits, but to limit it in various ways to mitigate its costs. 5

  For example, we may choose to limit the terms of copyright, or, to allow file-sharing but to disallow unlicensed public performances of copyright material. We may also choose to apply such limitations selectively to different forms of content.

- The strong enforcement of copyright has a negative effect on the shared production and distribution of freely-licensed content. This is one of the costs of copyright.

  Any system which facilitates the shared production and distribution of free content can also be used to pirate content which is not freely licensed. It follows that the requirement to enforce copyright imposes large liability risks on everyone who seeks to participate in the shared production and distribution of free content, particular on those organisations which run large public websites which facilitate sharing, promotion, discovery and distribution of free content.

  The most extreme response to the possibility of pirating copyrighted content on websites that promote sharing of "user-generated content" is to create a legal risk so large that all such websites are forced to close down.

- Copyright adds friction to the processes of promotion and discovery. This is one of the costs of copyright.

  The ideal form of content for both promotion and discovery is a complete and unencumbered version of the content which is licensed for free and unrestricted distribution. Unfortunately, this contradicts one of the major premises of copyright, which is that you can only make money from content if you don't give it away for free.

- The successful unlimited enforcement of copyright would require an unacceptable loss of human freedom. 6

  The only way to completely enforce copyright is to completely control every aspect of how every person uses computer and internet technology, so that it is never possible for one person to transfer a copy of a file to another person unless some official "copyright enforcement authority" has pre-approved the transfer. Such control of every individual's use of computers and networks by a centralised government authority would be an unacceptable loss of individual freedom, and a constant threat to democracy, freedom of speech and other Western values.

- The successful unlimited enforcement of copyright would result in a major reduction in the amount of content available to consumers. In particular, most consumers would never be able to access most content.

  If copyright enforcement always succeeds, then authors will prefer to prevent consumers from receiving content unless the consumer pays a price determined by the author. This will result in most consumers not being able to access most of the content that exists in the world (simply because they will never be able to pay the total price for all such content), even though they might be able to purchase a very small amount of "high quality" content at an "affordable" price.

  This problem is an example of artificial scarcity.

- Copyright prevents or limits the production of new content derived from existing content. This is one of the costs of copyright.

  If copyright is strictly enforced, no author can create a "derived" work without the permission of the original author. The requirement to get permission adds friction to the process of production, and in practice prevents the production of certain types of derived content altogether. (Or such content is produced, but it is always infringing, and its distribution is illegal.)

- To assume that copyright is the only possible means of determining payment to authors is to unnecessarily constrain the choices we make in the future about how to pay for the production of content which may not be fundable by purely voluntary means.

  In other words, even if we insist that payment to authors is a natural right of authors, it does not follow that copyright is a natural right of authors. Furthermore, if we insist on the necessity of copyright as the only possible means of payment, then we are misleading authors to believe that the successful enforcement of copyright is essential to their hopes of receiving income in the future, and we are also misleading them to believe that increased enforcement of copyright will benefit them, even though increased (but not total) enforcement may benefit some authors much more than others (also, see next item).

  Granted, the alternatives to copyright are somewhat limited, consisting mainly of:

  - Voluntary donations
  - Using digital content as an advertisement for other goods and services
  - Allocating payment to authors from funds collected from taxation

  The first two alternatives can happen whether or not copyright continues to exist. The third alternative, paying authors from funds collected from taxation, would require its own legal framework. Exactly how such a framework could work, or whether or it would work at all, is a discussion yet to happen. One reason it isn't happening (much) is that we are stuck with the assumption that either authors must be paid, therefore, we must have copyright, or, alternatively, if copyright cannot survive, then we must give up on the idea of authors receiving any direct compensation for their efforts, and authors will have to be content with only receiving voluntary donations and secondary business income related to the content in question.

  (Note: the subject of tax-based alternative compensation systems is sufficiently complex that it deserves its own manifesto.)

- The war on piracy benefits authors with access to expensive controlled promotional channels with large audience reach (such as radio, television, high street book shops) more than it benefits other authors.

  "Controlled promotional channels" are those channels that allow content to be advertised to a large audience with a reduced risk of the full content being immediately pirated, and are typically controlled by large publishing or distribution companies.

  For authors without access to these channels, their main option for promotion is to "give it away". If the cheapest and most effective method of promotion eliminates even the possibility of enforcing copyright on content, then expected income from the "sale" of content already given away will be be close to zero, and winning the "war" on piracy will be of very little benefit to those authors.

- Copyright contradicts normal human nature, because there is a natural human social instinct to share information.

  If I have some information, and my friend does not have that information and wants to have it, and the information in question is not some type of "secret" (where I have a personal interest in preventing other people from having that information) it is a natural thing for me to give my friend a copy. To refuse to share, for legal reasons un-related to one's own personal interests, is usually considered to be anti-social.

- Copyright will eventually fail completely. We should start thinking now about how we will deal with the failure of copyright, and what, if anything, we should replace it with.

  Assuming that no disaster occurs which destroys modern human civilisation and prevents continuing technological progress, copyright will eventually fail.

  Unless the technologies which facilitate copyright infringement (i.e. computers, internet and portable storage devices) are completely destroyed, it is difficult to imagine a future society where copyright continues to exist and is successfully enforced in its current form.

  Failure to imagine a future without copyright means that society as a whole is wasting too much energy on the ultimately futile "war on piracy", energy which could be better spent on changing our legal systems so that society can fully enjoy all the possible benefits of computer and internet technology, particularly the benefits derived from the ability that this technology gives us to share large amounts of information to anyone and everyone at near-zero cost.

## Reference

Stallman, 2002: Misinterpreting Copyright - A Series of Errors This essay by Richard Stallman remains one of the most significant refutations of what might be called "copyright maximalism".

In particular, Stallman explains that copyright should derive from public benefit, and not from any natural right of authors, and he outlines three major errors in the interpretation of copyright, which are: the concept of "balance" between the rights of consumer and the rights of authors, the assumption that "maximisation of output" is an optimal result of copyright, regardless of whether or not such output is available to all consumers (which it isn't, because they can never afford to buy all of it), and the assignment of maximum rights to publishers over all future use of content, even after it has been "sold" to consumers. He also mentions the possible desirability of copyright term limitation, and some of the negative effects that laws to "protect" copyright have on free software.

## Footnotes

The following footnotes are all in relation to Stallman 2002:

- 1 Stallman's essay is primarily about copyright in the USA. He points out that copyright is allowed for in the US Constitution (together with patents which are similar to but not the same as copyright) as a means to "promote the Progress of Science and the useful Arts", and concludes from this that copyright is not defined as a "natural right" of authors. To quote: "The founders of our country adopted a different premise, that copyright is not a natural right of authors, but an artificial concession made to them for the sake of progress."
- 2 Stallman refers to the "copyright bargain" as a decision by the public to accept certain costs (i.e. reductions in the public's "natural rights") in return for the benefits of copyright. (He does not give the original source of this expression, other than "legal scholars".)
- 3 See the section headed 'The first error: "striking a balance"'. Stallman prefers to use the term "trade-off" to refer to the relative costs and benefits of copyright to the general public.
- 4 That copyright should solely serve the public interest is the overall theme of Stallman's essay.
- 5 Stallman discusses possible ways of limiting copyright in the section headed "Finding the right bargain".
- 6 Stallman discusses the threats to various freedoms which result from legislative actions taken to increase copyright enforcement and to maximise the "rights" of authors.

## Notes on Terminology

In this manifesto, I have followed Stallman's convention of using "author" to describe the creator of any type of content to which copyright might apply. (Unlike Stallman I do not make so much of the distinction between "author" and "publisher" to which an "author" may have assigned copyright for the purposes of promoting and selling their content, as this distinction is not so relevant to most of the items in this manifesto – in particular, if authors naturally have certain "rights", then it is presumably OK for them to assign those rights to publishers, and if they don't have those rights, then they cannot be assigned anyway.)

Also in the manifesto I have used the term "society", to vaguely refer to some group of people who must make moral or political decisions about copyright. In practice this will be either a country (since most laws about copyright are national laws), or, the whole world (because copyright laws are mostly determined and constrained by international copyright treaties, see List of parties to international copyright agreements on Wikipedia for specific details).

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This manifesto is a Propositional Manifesto. It is licensed under the Creative Commons Attribution-ShareAlike license.