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

# The Moral Principles of Copyright

28 June, 2011
There are at least 14 moral principles commonly invoked in favour of copyright. So surely copyright must be a good thing? In this article I systematically apply all of these principles to alternatives to copyright, to see how the alternatives fare.
by Philip Dorrell

## What is the Point of This Article?

Is this article a long rambling skeptical analysis of copyright? Well yes it is. But it is also a taxonomy of moral principles used to justify copyright or to justify actions taken to enforce copyright.

What can you do with a taxonomy? Well, next time you read any document or article which discusses the morality or desirability of copyright, you can use this taxonomy to classify the various arguments given in favour of copyright. For example, you might say: "The first three paragraphs assume the Principle of Ownership, the fifth paragraph invokes the Principle of Public Benefit, and the last sentence in paragraph seven refers to the Principle of Non-Compulsion".

And if you find some apparent reference to a moral principle not in the following list, that means you have discovered a new principle to add to the list (in which case please drop me a line).

## Why Copyright Needs Moral Principles

In the war against piracy, those fighting the war invoke various moral principles to justify their efforts. Sometimes the principles are stated explicitly, other times they may be more implicit, as assumptions which underlie some particular claim made in support of copyright or in support of actions taken to enforce copyright.

The moral defense of copyright serves a political purpose, i.e. so that voters in democratic countries will support copyright, and also to support laws which may be enacted in the hope of making copyright more enforceable than it might otherwise be.

The moral defense also serves an educational purpose, i.e. regardless of whether or not copyright can be enforced by technical preventions or by threat of punishment, people who "understand" copyright might be inspired to restrain themselves from infringing upon the copyrights of copyright holders.

## A List Of Principles

So, what are these principles? The following is a list of what I think are the most important and most commonly invoked moral principles in relation to the defense of copyright:

- The Principle Of Ownership: If you create something, then you "own" it, and you have the right to control how that something is used by other people. In the case of copyright, the "something" is the information which defines the copyrighted content.
- The Principle of Compensation: People who create useful content deserve to be compensated for their efforts.
- The Principle of Negotiated Compensation: Copyright not only gives creators the ability to be compensated, the compensation is determined by how much consumers are willing to pay to use that content, and is thus effectively determined by the "value" of that content.
- The Principle of Attribution: People who create content deserve to receive attribution and recognition for their efforts, and this attribution should not be taken away from them.
- The Principle of Public Benefit: Copyright benefits the general public who are subject, as consumers, to the restrictions of copyright, because it effectively pays for the creation of that content. Without copyright, useful content might not get created at all.
- The Principle of Beneficial Compensation: There are many people who make money directly or indirectly from the sale of copyrighted content, and it is beneficial that these people make a living.
- The Principle of Universality: Copyright applies equally to everybody – anyone who creates an original work automatically receives copyright on that work. There are no fees to pay, and no bureaucratic procedures to follow.
- The Principle of Unique Origination: Copyright is generally only conferred on an original work which is sufficiently substantial that it is very unlikely that it would exist at all if if had not been created by the person or persons who first created it.
- The Principle of Non-Compulsion: No one is compelled to pay for the use of copyrighted content – if you don't want to pay, then you have the option of not using the content in question.
- The Principle of Legality: Given that Copyright is law in most countries in the world, and given that this law has a moral basis as specified in the principles listed so far, it follows that it is immoral for anyone to infringe on copyright, as doing so is an illegal act which breaks a set of laws which are moral and just.
- The Principle of Importance: Given all the previous principles, copyright is very important, and therefore we (as a society) should take what ever measures are necessary to enforce copyright and to prevent (or punish) the infringement of copyrighted works.
- The Principle of Balance: Given that some of the actions which could be taken to enforce copyright might go "too far", copyright laws and regulations should be carefully designed to ensure a "balance" between the interests of copyright-holders and consumers.
- The Principle of Geographical Consistency: Any country that doesn't have copyright (or even just has less copyright) is spoiling it for all the other countries that do have copyright, so given that copyright is a good thing, all countries should have it.
- The Principle of Historical Consistency: Copyright has existed and worked well in the past – if technologies change, then those technologies do not alter the moral basis of copyright, and we need to adapt new technologies to copyright, rather than adapting copyright to new technologies.

## High-Level Analysis

My list contains 14 principles. And there might be a few more that I haven't thought of, although I think I've included the most important ones.

Given that there are so many moral principles in support of copyright, one might think that the moral justification of copyright is overwhelming, and that we should proceed onwards and upwards forever in the "war" against piracy and infringement.

However, all is not so simple. Some of the more general principles appear to support copyright, but they could just as easily support alternatives to copyright. Such alternatives could include:

- No copyright at all.
- Copyright is enforced, but only in those situations where it is practicably enforceable.
- Compensation for the creation of original content is collected and paid out by some means other than the enforcement of copyright.
- Copyright, but for shorter periods.

Although these proposed alternatives differ from each other, the first three have one thing in common which puts them in opposition to copyright as we currently understand it, which is that "digital piracy" would be fully legal, and the very concept of "piracy" as applied to copyrighted content would cease to be meaningful or relevant.

A second issue, when considering the large number of moral principles in apparent support of copyright, is that there is only really one principle which matters, and all the other principles are subservient to that principle.

That one principle is the Principle of Public Benefit. That is, copyright is justified if it is beneficial, in general, to society. And if it is not beneficial, or not beneficial in its current form, then it should be changed into whatever form is more beneficial.

The concept of public benefit is implicit in the following clause in the United States Constitution:

> To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

(Yes, I know that many of us don't live in the US, but a lot of copyright advocacy comes out of the US, so it's good to quote their constitution when discussing the rationale for copyright.)

However, the first person to clearly point out the importance of this principle to the exclusion of all other principles is Richard Stallman, in his essay Misinterpreting Copyright – A Series of Errors, where he argues against the popular notion of "balance", and where he shows that there is no moral concept supporting the "interests of authors" other than what benefits the "reading public".

(Note: with regard to alternatives, Stallman discusses shorter copyright periods in his essay, and elsewhere he has discussed alternative compensation schemes – here and here.)

## Detailed Analysis of Principles, with Consideration of Alternatives to Copyright

### The Alternatives

Before I give a detailed analysis of how the various moral principles would apply to alternatives to copyright, such as the four alternatives given in the list above, I will analyse what those alternatives might be, in particular as to what laws would operate for those alternatives, and how content creators might expect to be paid in each case.

#### No Copyright At All

If we have no copyright at all, then anyone can copy anything, at least they can if they already have a copy, unless perhaps they have explicitly entered into a private contract stating that they will not copy certain information (i.e. a contract such as a non-disclosure agreement, or a trade secret agreement). If there is no copyright, then the only way to stop people from copying published content is not to publish it.

Even in a world with no copyright, authors might still assert rights of attribution, i.e. that the original author of the work has the right to claim that they are the original author of the work, and that perhaps all published presentations of that work or of derived works should acknowledge the authorship of that work by the author, if the author so requires.

As for compensation, if there is no copyright, then authors of content have no legal recourse to receive compensation for publicly published content, and if they expect to receive any such compensation, they must rely entirely on voluntary donations, or to put it another way, they must beg.

#### Copyright is enforced, but only when it is enforceable.

Part of the argument against copyright in its current form is that it is both pointless and at the same time damaging to enforce the unenforceable. However, some aspects of copyright may be more enforceable than others. For example, if may be very difficult to prevent people from copying movie files, but it may still be feasible to prevent the unauthorised showing of movies in public cinemas.

A reduced system of copyright would give recognition to what is enforceable and what is not enforceable, and would assign rights of prohibition to authors accordingly. And authors (or their publishers) would continue to receive payment from the licensing of those rights which continued to be both enforced and enforceable.

#### Compensation for the creation of original content is collected and paid out by some means other than the enforcement of copyright

The idea of Alternative Compensation is that copyright and begging are not the only possible methods of providing compensation to content authors. The major alternative involves collecting money from the public by some form of taxation, and then disbursing those funds, according to some defined criteria, to content authors.

In the Voted Compensation scheme which I have previously proposed, the system operates as follows:

- Money for compensation is collected from an internet and digital media tax, on the grounds that use of internet and digital media is roughly proportional to the benefit received from the use of freely distributed digital content.
- Content authors register as authors of specific content, where such content is specifically licensed for free distribution.
- Consumers vote about which registered authors should receive what portion of the money to be disbursed. (A simple approach is to pay out in proportion to votes received, however this is not necessarily the best way to calculate payments, and I go into more details in my description of the scheme.)

Voted Compensation is not the only possible system of alternative compensation, and for example other schemes have been proposed base on internet taxes, however Voted Compensation is probably the only one that doesn't depend on attempting to "measure" content consumption, because instead of "measuring" the behaviour of consumers, the Voted Compensation depends entirely on asking consumers which content they think deserves the most payment. (A system based on "measurement" will turn out to require some type of "enforcement" to avoid corruption of results, and this will end up looking suspiciously like DRM which is one of the major objections to having copyright in the first place. Also note that Stallman refers to "surveying" in one of his internet tax proprosals, which is kind of the same as voting.)

#### Shorter Copyright Periods

The argument for shorter copyright periods is that most of the compensation for most copyrighted works is received in a relatively short period after the work is first published. As Stallman points out, if we consider copyright to be an intrinsic moral right, then there is no reason for it to ever expire. And this is precisely what has happened in the United States, with repeated copyright extensions and so-called "Mickey Mouse laws", i.e. Mickey Mouse never goes out of copyright.

But if we think of copyright as something with both costs and benefits (i.e. to the public), then in most cases, as time passes, the costs increase relative to the benefits, and so it makes sense to expire copyright after some period, possibly as a function of the type of content being copyrighted.

It has been observed that Santa Claus (i.e. the relatively modern "Coca Cola" Santa Claus) missed the boat on copyright extension, so now there is a whole industry devoted to making Santa Claus movies, with a corresponding public "benefit", whereas the amount of benefit derived from new Mickey Mouse content is fairly minimal – I can't remember watching any great Mickey Mouse movies recently.

### The Principle of Ownership

To some extent the Principle of Ownership is not so much a moral justification of copyright as a restatement of copyright as a moral principle.

It appeals to our moral intuitions by analogy with the concept of physical ownership of material goods.

Once such an analogy is proposed, and accepted, we can use the existing moral language of physical property and ownership to discuss the enforcement of copyright.

Thus un-authorised copying of copyright material is described as "stealing", even though it is somewhat distinct from "normal" stealing, which does not normally involve the duplication of the items being stolen.

The analogy with physical ownership also disregards the principle of enforceability. If you happen to put your wallet down somewhere, in a public place, and someone else takes it, that is stealing. But, we do not propose that the whole of modern civilisation be restructured in order to absolutely prevent the stealing of goods which have not been properly secured by their owner.

Historically, unauthorised copying of copyrighted content has involved the creation of actual physical objects containing that content, and furthermore the cost of the physical representation of the content has been a significant component of the typical market price of the physical representation. Copyright law has never made any reference to this proportion of physical cost, but in practice it has played a major role in the enforceability of copyright. In the world of computers and internet, the representation is still physical, involving electrons and magnetism, but the proportional cost of the physical component has become so tiny as to be negligible, i.e. for all practical purposes zero.

When the cost of "stealing" copyrighted content reduces to zero, the cost of preventing such theft approaches infinity. If we regard copyright as a moral end in itself, then there is no limit to what we will put up with so that copyright holders can prevent "us" (the public) from stealing their works. But if we regard copyright as something only justified by the benefits that we receive from it, then we should start asking if the costs of enforcement exceed any conceivable benefit, at which point we as a society should give up trying to enforce copyright, and, if necessary, we should formulate an alternative approach to rewarding content creators for their efforts.

If copyright in its current form is abandoned, then the strong notion of ownership, i.e. ownership of copies of information that other people have, ceases to exist. It gets replaced by alternative notions of ownership, such as:

- The right of attribution, that is, ownership of the right to be acknowledged as the original author of a work.
- Those limited (but enforceable) rights of useage specified in a reduced copyright system.
- The right to receive compensation disbursed to an author in an alternative system, as a function of being attributed authorship of content which is deemed worthy of compensation.

### The Principle of Compensation

If copyright doesn't exist, and is not replaced with anything else, then the only compensation received by authors is from voluntary donations.

In a reduced or time-limited copyright system, there is correspondingly reduced compensation.

In a Voted Compensation system, the issue of whether or not authors "deserve" to receive compensation is re-decided every time consumers/taxpayers vote on how compensation should be allocated. (The public also has to vote beforehand on how large the total compensation fund should be, which amounts to an estimate of how much all content authors "deserve" in total.)

### The Principle of Negotiated Compensation

In a working copyright system, with effective enforcement, the ability to prohibit unauthorised copying gives the copyright holder the ability to negotiate directly with consumers of their works.

In an alternative compensation system, authors must accept the results of whatever system is used to "measure" the value of their contributions. In the case of Voted Compensation, authors must accept the choice made by voting consumers (where many of those consumers may have no direct interest in consuming a particular author's work, but still have the ability to vote for or against that author receiving compensation). Thus the Principle of Negotiated Compensation, at least as applied at an individual level to individual authors and individual works, is lost.

(And here's a good place to make an observation about economists: I think some economists love the idea of enforceable copyright, because it treats information as material goods, which are "produced" after some initial investment, and then "sold" to those who demonstrate the value of content by their willingness to pay for it. It's great if the economics of information can be analysed in the same way as the economics of material goods. But one can be so enamoured of the analysis as to forget that copyright is a contrivance, and that if the contrivance itself is massively counter-productive, then analysis of productivity within that contrivance is not a complete analysis of the economics of information production and distribution.)

### The Principle of Attribution

Whether or not an author is attributed as the author of a work is quite separate from whether or not the author has the right or the ability to prohibit the making of copies.

Thus the Principle of Attribution can and indeed should continue to exist in any alternative legal system.

For an alternative compensation system, attribution remains relevant to the receipt of compensation. If a work is measured or voted as being deserving of compensation, and if someone falsely claims to be the author, then that person has indeed "stolen" compensation from the true author, and should be duely punished for that theft.

Even in a simple no-copyright system, attribution is important for financial reasons, since even voluntary donations can be "stolen" by a false claimant of authorship.

(A second function of attribution has to do with credit, which is a non-financial consideration, and one which cannot be transferred to another person in the sense that copyrights can be. Stealing credit for something you didn't create is what we normally call plagiarism.)

### The Principle of Public Benefit

As mentioned above, and as supported by Richard Stallman's argument against the concept of "balance", the Principle of Public Benefit is actually the only moral principle that really matters when considering the pros and cons of copyright and of alternative legal systems.

A brief summary of Stallman's analysis of the costs and benefits of copyright is as follows:

- To enforce copyright, a government must "spend" the public's freedom. Freedom is a precious thing, and we should not lightly give it away.
- Maximising the number of copyrighted works produced is not the same as maximising public benefit.
- Strengthening authors' ownership rights has the effect of reducing the production of new works which might be partly derived from existing works.
- In order to maximise the enforcement of copyright, laws are proposed which attempt to control the development or even the discussion of any new technologies that threaten to undermine the enforcement of copyright. These laws are bad because they hinder the development of new technologies.

And a few additional observations of my own:

- Maximising the amount of content produced would be somewhat beneficial to the public if the public was free to consume all that content. But it is in the nature of copyright that any individual consumer is only ever able to purchase a tiny fraction of all the content that is ever produced. Producing large amounts of content that most people will never consume is not really a major benefit. (Although this consideration is mitigated by the fact that some content is sold more cheaply as time passes after the initial date of publication, e.g. video rental of old movies is cheaper than video rental of new movies, which in turn is cheaper than going to the cinema.)
- Maximising content production is also not beneficial if consumers have no means of discovering such content, whether or not they are willing to pay for it. To make money from selling copyrighted content, you have to have some means of promoting content which doesn't involve actually giving the content to your potential buyers. In a modern digital world, this is non-trivial to achieve, and it limits commercial success to those who have access to the right channels whereby material can be promoted to the public without giving it away. For those without special access to the right channels, there's YouTube. But once you put your tune on YouTube, you've already given it away. On your YouTube video page you can encourage your fans to buy a better quality copy on iTunes, but then iTunes doesn't try all that hard to enforce DRM, so you're still in the business of giving away the very thing you are trying to sell.
- All the things that we consider good, i.e. morality, democracy, free speech, Western Civilisation, depend to a large extent on the free flow of information. Since the enforceability of copyright depends precisely on not having free flow of information, the final successful enforcement of copyright can only come at the cost of the complete destruction of morality, democracy, free speech and Western Civilisation. Which some people might suppose is too high a price to pay.
- Copyright makes it much harder to produce and distributed derivative works, as typically the author of a derivative work must negotiate with the author or publisher of the original work, and this introduces substantial friction into the creative process. Copyright also makes it very difficult, or even impossibly expensive, to scientifically study certain types of content (especially music, where a comprehensive database of modern popular music, if such a thing was even allowed to exist, would cost millions of dollars).

### The Principle of Beneficial Compensation

Sometimes we are told about how many people receive income from the sale of copyrighted material. This is obviously beneficial to those people receiving the income, however it is not necessarily related to public benefit.

If a songwriter receives payment because they wrote a song which everyone likes, then that seems like a good thing. If a salesman in a CD shop makes money, that's good for the salesman, but the benefit to the public is less clear. The cost of the buying and selling physical CDs is part of the distribution process, something which can be done much more cheaply on the internet. And for those of us not yet on cheap broadband, it would make more sense for shops to sell 8 Gb DVDs full of compressed MP3s (or whatever format), with perhaps 2000 songs on a DVD. But that would only make sense in a world where consumers weren't required to spend US$1 or more per song.

### The Principle of Universality

Universality is a desirable property of any moral principle, and if we regard copyright as being a moral principle in itself, then copyright as it currently exists certainly has that property.

However, if we lived in a world in which we subscribed to the moral principle that all publicly published information can be freely copied, then that principle would also be universal. So we cannot deduce the morality of copyright from the principle of universality. We can only observe that copyright is consistent with a requirement for universality.

A secondary issue with universality is that similar but different principles can make equal claims to be universal. For example, everyone should pay their fair share of taxes. But what is fair? Should we attempt to estimate how much each person costs as a user of government services? Should we make everyone pay the same proportion of their income? Should we make everyone pay a fixed amount of taxes? Should we have progressive taxation? Should we tax different kinds of income differently, for whatever reason?

If we insist on universality of copyright, we lose the ability to make pragmatic decisions about how to apply copyright. For example, it may make sense to have different copyright terms for different types of content. But it is then less universal, because we will have rules that "discriminate" against authors based on what type of content they are producing.

### The Principle of Unique Origination

The Principle of Unique Origination is part of the moral justification for copyright because it tells us that if a given author hadn't produced a particular work, then we wouldn't have that work at all. (There have been cases of "authors" attempting to copyright works so small that unique origination might not be guaranteed, however we generally recognise such attempts as abuses of copyright law which should not be tolerated.)

If we attempt to apply this principle to alternatives to copyright, we are forced to take a hard line against those who feel that anyone who does something deserving deserves to receive the maximum possible reward for what they have done, which is:

> If you do something worthwhile for others, then you can hopefully expect to receive some benefit in return.

> Yet you should not expect that the operation of modern civilisation will be restructured just to make sure that you are guaranteed a maximum possible payment for your efforts.

> Ultimately you have to accept the subjective judgement of everyone else about what you deserve to receive as payment.

### The Principle of Non-Compulsion

The Principle of Non-Compulsion is part of a response to those who might claim that they have a "right to pirate" because content costs too much. The response is: if you don't like what the content costs, then you don't have to buy it because you don't have to consume it.

The application of this principle to alternatives to copyright is similiar to that for the Principle of Unique Origination. But we can take it further, because we can say the following to content producers in a world without copyright:

> If you don't like the rules for receiving compensation in a world where copyright is different to what we have now, you can choose not to create content.

> If for whatever reason an alternative to copyright results in a reduction in the availability of quality content, this is a choice that has been made by the public.

> The public can rationally decide that the advantages of not having copyright outweigh the loss of some types of content, and that therefore the choice they have made is the best choice that they could have made.

### The Principle of Legality

The Principle of Legality doesn't really justify any particular law, because if we change copyright laws, for example to allow private file-sharing, then what is now illegal will become legal.

However invocation of this principle does serve to confuse questions about the morality of individual acts of piracy versus the morality of a legal system where "piracy" ceases to be an illegal activity. So, for example, organisations representing the interests of copyright-holders can talk about the need to "stamp out piracy", which seems like a good thing given that piracy is illegal, but at the same time they can completely ignore the need to discuss the possibility that piracy is actually a good thing (otherwise why are so many people doing it?) so maybe it should be legalised.

### The Principle of Importance

The Principle of Importance tells us that copyright is so important that it must be protected, no matter what the cost. If some consumers persist in infringing copyright, the punishment for those who infringe should be made so harsh that they don't persist. If technology enables copyright infringement, then that technology should be dis-allowed, or at least strictly controlled.

The Principle of Importance is almost the opposite of the Principle of Balance (which comes next in this analysis). We can regard the Principle of Importance as an initial negotiating position, from which certain grudging concessions might occasionally (and mercifully) be made by those whose rights are constantly threatened by the actions of copyright infringers.

### The Principle of Balance

As I have already discussed, the concept of "balance" was analysed and refuted by Richard Stallman in his "Misinterpreting Copyright" essay.

The Principle of Balance is deceptive, because it seems to make some concession to the Principle of Public Benefit, i.e. to recognise that some extensions to copyright law might disadvantage consumers "too much", even allowing for the moral importance of the Principle of Ownership. But, it fails to recognise that the Principle of Public Benefit is the only principle that actually matters, and that the Principle of Ownership, in as much as it applies at all, is entirely subservient to the Principle of Public Benefit.

The Principle of Balance seems to allow for minor alterations or reductions in the legal rights conferred by copyright law, but as Stallman points out, if we are to find the best possible legal system relating to rights given to content authors, we have to abandon the concept of "balance" completely, and make sure that public benefit is the only consideration when choosing a better legal system.

### The Principle of Geographical Consistency

Whether we like it or not, copyright law is an international law. Many of the controversial changes in copyright law seem to be driven by interests in the United States, which is perhaps not surprising, given that much of the world's "content industry" is situated in the United States.

This can make things difficult for any other country whose government is perhaps a bit skeptical about all the alleged benefits of copyright.

Sometimes copyright law changes in other countries are introduced as part of a trade deal with the United States, which suggests a message of: "You make your consumers pay as much as our content industry thinks they deserve, and we'll buy other stuff off you without charging tariffs".

The internationality of copyright makes it more difficult to consider alternatives. If there's ever going to be a "copyright revolution", it's only going to happen if all the people in all the different countries decide to take part, and if all the revolutions happen at the same time.

So in the meantime, what can a copyright-skeptical country do? Well:

- A country can promise to "defend copyright", but not actually try very hard (some poorer countries already seem to do this).
- A country can institute an alternative compensation system funded by an internet and/or hardware tax, and only disburse funds for content which is licensed by the author for free distribution in that country (such a scheme leaves authors from other countries entirely free to participate, so it does not discriminate at all against foreign authors).
- A country can amend its existing copyright legislation to state that it has been enacted in accordance with international treaties, but does not necessarily represent the best interests of the country's own citizens. (Ironically, my personal impression is that adding such emotional comments to legislation is a popular activity in the United States.)

### The Principle of Historical Consistency

A general feature of morality is that it does not change very fast. Our ideas about right and wrong are much the same this year as they were last year. The safest way to make moral decisions today is to follow exactly the same moral rules that you applied yesterday.

But morality does change. Over time scales of centuries and decades, we have "discovered" new moral rules, such as:

- Freedom of speech is good
- Democracy is good
- Slavery is bad
- Religious freedom is good
- Consenting sex between adults of the same sex is OK

So just because we have come through a period of time where copyright has been regarded as a sacred right which can never be taken away from authors (or their publishers), it doesn't mean that things have to stay that way.

My own feeling and subjective impression is that these days many people do not "believe" in copyright as much as they used to. Or perhaps they never believed in it that much, but now modern technology gives them the opportunity to show how much they don't believe in it.

We also seem to be in a situation where many people do not take copyright at all seriously when considering file-sharing with their friends, but in public discussions copyright is still treated as an intrinsic moral right which needs to be defended at all costs.

This inconsistency between private and public ideas about copyright is one of the things that motivated me to write this article. We are in a state of uncomfortable equilibrium, where many already "enjoy" the benefits of piracy (but some people much more than others), but society as a whole is unable to benefit as much as it could from a guaranteed "freedom to copy", and where the "copyright industry" continues to occupy the moral high ground in public discussion, which prevents us from engaging in any sensible discussion about possible alternatives.

## Appendix: Patents

There is a considerable degree of analogy between copyright and patents, even though we have to refer to Richard Stallman again where he explains that different kinds of intellectual property are different from each other.

However, copyright and patents are similar enough to each other that the same moral principles do tend to be invoked in discussions about either.

I would also claim that software patents are the most similar to copyright, precisely because the cost of infringement is rapidly approaching zero, due to the non-material nature of the patent (i.e. in practice one can readily download patent infringing software off the internet, and there are many packages which come with instructions about how to supply some missing component from "somewhere else", that somewhere else being a certain country where certain software patents don't apply, even though you will still be infringing those patents when you download the component and run it on your computer because the software patents do apply in your country).

So here is a brief comparison of how the same 14 moral principles apply or don't apply to patents, and in some cases specifically to software patents:

- The Principle of Ownership: If you invent something, then a patent allows you to "own" that invention, and prevent anyone else from using it. Unlike copyrights, patent terms are strictly limited – to 20 years – and there has been no tendency to change that term. One difference with patents is that an inventor only "owns" their invention if they go through the process of applying for a patent and receiving it, and they only "own" their invention in other countries if they also apply for the same patent in those other countries. (This difference is quite relevant to some of the other principles, as the cost of applying for and receiving a patent is quite non-trivial.)
- The Principle of Compensation: As for copyright, people who invent deserve to be compensated for their efforts.
- The Principle of Negotiated Compensation: As for copyright, the value of your invention is "measured" by much other people are willing to pay for the right to use it.
- The Principle of Attribution: People who invent deserve to receive attribution for their efforts. To some extent patents take this further than copyright, because anyone applying for a patent is expected to list all known "prior art" on their application, as an acknowledgement of any previous inventions (i.e. attribution to those inventors) which might be relevant to the inventor's claim to have invented something new and useful.
- The Principle of Public Benefit: Patents benefit the public, because patent royalties pay for the cost of invention, and act as an incentive to invent. A secondary benefit is the "disclosure" required as part of a patent application, i.e. the inventor must fully and publicly describe the invention, and, after the 20 year period has expired, anyone is free to read that description and use the invention themselves without any restriction. With respect to software patents, "disclosure" is not generally regarded as a significant public benefit, because software is not that hard to reverse engineer. Also, we can compare the situation with that of copyright where there is no requirement for disclosure at all, and, for example, a vendor of copyrighted software is under no obligation to supply any information to the purchaser or to anyone else describing how the software works. (Or for another example, the seller of a hit song is not under any obligation to say what chords are used, or what the time signature is.)
- The Principle of Beneficial Compensation: This particular principle is not generally invoked in discussions about the morality of patents. (A hypothetical example would be if someone claimed that patents are good because they give employment to patent lawyers and patent office clerks.)
- The Principle of Universality: Superficially patents are as universal as copyright, since anyone can patent, and inventors can even patent first in another country if their own country does not allow patenting of that particular type of invention. However, unlike copyright, patents are not granted automatically. Simply inventing something, and publicly publishing details of your invention does not give you any of the rights given to a patent holder. Given the high cost of applying for a patent, the patent system discriminates against those who do not wish to commercially exploit their "inventions". This has a major impact, for example, on open source software, because the economics of open source dictate that open source "inventions" are almost never patented, and are therefore at a distinct disadvantage when patent rights are asserted by a commercial patent-holder. Given the intrinsically public benefits of open source software, i.e. open source software is available for anyone to use in any way possible, the anti-open-source nature of patents is very definitely not beneficial to the public.
- The Principle of Unique Origination: A patent is granted to an inventor who can prove that at the time of the patent being applied for, no one else in the world had publicly disclosed that invention or applied for their own patent on the same invention. There is also a test of "non-obviousness" required. However, unlike the case with copyrights, there is no assumption that someone else could not have invented the same invention soon after the original inventor, or that the invention would not be readily invented at some later date when the need for it becomes more obvious. And indeed there are famous cases of two or more inventors rushing to invent and "file first" on the same invention. (A minor complication here is that the United States has their own special "first to invent" system, which may allow initial public disclosure, however such disclosure would still prevent a patent being applied for in other countries. But this difference in rules for priority makes no difference with respect to whether or not the Principle of Unique Origination is applicable to patents as a whole.)
- The Principle of Non-Compulsion: Because the Principle of Unique Origination does not apply to patents, it is harder to say that the Principle of Non-Compulsion applies. Anyone who "invents" something is at risk of infringing upon a patent held by someone else who may have already invented the same thing (or similar). It is now common wisdom that any commercial software company should patent as many of their "inventions" as possible, to mitigate the risk of being sued by some other software company, or at least to given them the option of a "counter-attack" (except of course if you're attacked by a "non-practising entity", then no such counter-attack is possible). So there is an element of compulsion here. And for an open source project the situation is impossible, i.e. the project authors should patent defensively, but by the nature of open source they almost certainly cannot afford to.
- Principles of Legality and Importance: Both of these principles relate to public justifications of legal actions taken to protect copyright, where such actions affect the general public. In the world of patents, actual enforcement appears to be lower key, and the general public has not so far been a specific target. For example, we might imagine that a patent-holders' organisation would lobby to close down access to websites that allow the public to download infringing software libraries (which would presumably require some prior legal judgement that the libraries where infringing, even though the provider of the libraries might not be infringing because he/she is living in a different country). But this kind of thing hasn't happened yet.
- Principle of Balance: There is little notion of "balance" in the world of patents, apart from the requirement for disclosure and the strictly limited term. Compared to the situation for copyrights, there is no notion of "fair use". Either you are using a patented invention or you are not using it. And if you are using it then you are infringing. (One minor example of "balance" is that you might have your patent monopoly suspended if it's a matter of something really important like National Security.)
- The Principle of Geographical Consistency: As for copyrights, there are international agreements about patents, and it can be difficult for any one country to change the rules. There is some allowance for diversity, for example countries vary in the patentability of software, and there is the previously mentioned "first to invent" rule which is different to the more common "first to file".
- The Principle of Historical Consistency: There seems to be less appeal to historical consistency in discussions about patents. Most recent controversy about patents has centred about the value of patenting software. But what has changed with patents is what can be patented (and arguments in favour of patenting software will focus on consistency across different types of invention, rather than historical consistency), whereas with copyright the recent changes are how copyright can be infringed, i.e. by copying digital files between computers, either privately or on the internet.

Another difference between patents and copyright in public discussion is that the logic of patents is much more complicated. The most common type of copyright infringement is straightforward copying, with authorised derivative works being less often a target of actions taken by copyright-holders. The copyright is entirely defined by the work being copyrighted, and any difficulty in determining infringement is entirely a matter of subjective judgement as to whether an allegedly derivative work is obviously "similar" to the original work.

With patents there are concepts of "claims", "prior art" and "obviousness", and these are somewhat intelligible, but many people would never have read an actual patent, or if they had, they might have wondered what on earth it was all about. The whole process of deciding if a patent is valid and deciding if someone else has indeed infringed upon it contains various obscurities and subtleties of case law which can be rather mysterious to anyone not in the patent business. (To give an example: some people think that the US Supreme court has decided that software is not patentable, but companies are still applying for software patents, so who knows what is going on there?)

And because patent infringement actions are not generally (or ever) taken against members of the general public, there is no particular requirement for any normal person to know these details, and there is no need to "educate" the public about patents, beyond telling them that patents "reward inventors" (so therefore we should carry on having a patent system).

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