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

# Some Provocative Questions About Copyright

4 July, 2011
Copyright is supported by multiple moral principles. But these different moral principles are not necessarily equivalent. The provocative question is to ask someone who invokes two or more moral principles: Which one of those principles is the more fundamental?
by Philip Dorrell

This article is a followup to The Moral Principles of Copyright, where I list 14 moral principles commonly used in justifications of copyright from a moral point of view. You can go away now to read that article first; alternatively you might want to refer to it when I mention specific moral principles (particularly to refer to the actual list).

## "Sleight-of-Hand": How Multiple Moral Principles Are Used To Argue Invalidly

A significant amount of debate about copyright consists of assuming one or more moral principles, and applying those principles to a particular situation to decide what is the "right" thing to do. In debates about copyright, these decisions are usually about whether someone is "permitted" to copy some content, or re-use it in some way (to create new content), or whether some action should be taken to prevent or punish some copying or re-use which is not permitted.

The problem with having multiple moral principles to support your own point of view is that it becomes too easy to engage in a "sleight-of-hand" with regard to your assumptions. At one point in your argument you assume principle X, and then at some later point in the argument you assume principle Y, ignoring the difficulty that if you had continued to refer to principle X then the later part of your argument would be invalid.

This sleight-of-hand is often facilitated by secondary arguments about the equivalence of different principles. You may at some point claim the equivalence of principles X and Y, giving some plausible argument in favour of that equivalence. Later on in your argument, you implicitly rely on that equivalence when freely moving from one assumption to another, even though the evidence you gave in support of equivalence was not strong enough to demonstrate it conclusively.

To give a specific example, a copyright advocate may assume the Principle of Public Benefit initially, and then claim that Public Benefit is equivalent to the Principle of Ownership, because "the public benefits from the incentives created by ownership of copyrights", supporting this argument by providing evidence that public benefits arise on some occasions as a result of such incentives. Later on the same advocate gives arguments based entirely on the Principle of Ownership, even though the argument for equivalence never went far enough to demonstrate equivalence under all possible circumstances that might arise, either now or in the future.

## How to Ask Provocative Questions About Multiple Moral Principles

My formula for unmasking this sleight-of-hand is to demand that those who argue should declare their fundamental moral principles in advance of making any claims about equivalence.

To turn this into a question, pick two moral principles that your opponent uses to argue their case, and ask which of those two principles is the more fundamental.

In serious discussions about copyright, the major moral principles invoked are the following three:

- The Principle of Ownership
- The Principle of Compensation
- The Principle of Public Benefit

That is, copyright is good because authors have the right to "own" their work, or copyright is good because authors deserve to get paid for what they do, or, copyright is good because it's good for the public.

Although these principles are inter-related, none of them is exactly equivalent to the others, so there are three different pairings we can use to ask a provocative question:

- Which is more fundamental, that authors have a right to "own" their works, or that authors have a right to be paid for producing their works?
- Which is more important, the right of authors to "own" their works, or the interests of the general public?
- Which is more important, the right of authors to be paid for their efforts, or the interests of the general public?

For the first question, if the response is that ownership is more fundamental, then the respondent must admit that if required to choose between the two, they regard ownership as more important than how much authors get paid.

For the last two questions, if the response is that ownership or compensation is more important, then the respondent must admit that if required to make a choice, they regard either ownership or compensation as more important than the public interest.

Conversely, if the response is the second choice for each question, then the respondent has to admit the possibility that:

- Depending on circumstances, giving "ownership" of works to authors may not be the best way to compensate authors.
- Depending on circumstances, giving ownership of works to authors may not be in the public interest.
- Depending on circumstances, guaranteeing compensation of authors may not be in the public interest.

What are the "circumstances" that could give rise to these counter-intuitive possibilities? By far the most significant change of circumstance in recent times is the develoment of computers and internet. Of course computers and internet are exactly what have caused the huge increase in "piracy" of copyrighted content.

Computers and internet have radically reduced the cost of distribution of content, but only if no attempt is made to enforce copyright. Computers and internet have actually increased the cost of copyright enforcement, because to enforce copyright we now have to significantly disable computers or the internet (or both).

It follows that we have to consider the possibility that the development of internet and computers has changed the relationship between ownership, guaranteed compensation and public benefit, and that we may now have to choose between ownership and compensation, between ownership and public benefit, and possibly even between compensation and public benefit.

What we shouldn't be doing, but what it seems we are doing, is just say "business as usual, apply the existing rules to new technology".

## The Fairness of Author's Compensation

The question about compensation versus public benefit can be rephrased as follows:

- Do you believe, as a moral proposition, that authors should be paid for their work?

This is related to the issue of whether you believe in copyright as an end in itself. But copyright is not necessarily equivalent to "authors being paid". Furthermore, copyright does not guarantee to pay an author the full value of their work. However, copyright royalties are almost certainly a lower bound on the value of an author's work, as measured by market prices, since they directly measure the willingness of readers to pay for that work. And in as much as royalties represent a lower bound on value, it certainly seems that authors "deserve" to receive at least that much payment.

So how can we ever countenance taking away this income which authors receive and which we would agree, based on objective economic criteria, they deserve to receive?

Before I give a possible answer to that question, it's worth considering what it means to be an author:

- An author is a person who engages in a particular activity, i.e. writing content of sufficient quality that other people want to read it.
- An author might get paid for that activity.
- No one is obliged to be or to become an author.

The last point is relevant, because if society ceases to enforce copyright, rather than interpreting that as "taking away payment from authors", we can interpret it as "being an author ceases to be a paying job". So if you are an author, and you want a paying job, you have to do something else instead of, or as well as, being an author.

This still seems somewhat morally counter-intuitive, because the reason that authors are at risk of losing their income is not because people don't want to read what they write, and it's not because authors have lost the ability to write. (Which is the usual reason why people lose their jobs and and then get told: "Sorry about that, but that's how markets work, so find another job".)

The reason that copyright royalties are at risk is because the development of new technologies, especially computers and internet, has made it more and more difficult to enforce copyright. And it is not possible to re-instate the enforceability of copyright without destroying much of the value that computers and internet provide.

So we are faced with a stark choice:

- Throw away the benefits of computers and internet, or,
- Deprive an existing group of people performing a useful task of their existing income

Which brings me back to an expanded version of the original question:

- Which is more important, the right of authors to be paid for their efforts, or the interests of the general public, in particular the benefits that the public receive from the free (i.e. uncontrolled) use of computers and internet?

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