Copyright Principles

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Copyright Conflicts with Traditional Property Rights

Copyright is a legal property right, because copyrights can be sold under law, however any saleable right created by law would likewise be a legal property right. Parliament could, if it so wished, enact legislation creating a saleable right to prevent people from clapping their hands, and this too would be a legal property right. Clearly then, that copyright is a legal property right has no bearing on whether it is a moral right.

Modern copyright law was originally intended to provide an incentive for the development of works by creating a monopoly over the manufactor and vending of copies, without imposing a servitude on their subsiquent use. A servitude is a nonpossessitory interest claimed by a seller of property to restrict the use of that property, not just by the first purchaser as agreed in contract, but by any future purchasers. Specific kinds of servitudes, such as easements, have historically been recognised for land, but generally not for chattels. The copyright first-sale doctrine supported the intention that copyright not be a servitude (as did the patent exhaustion doctrine with patents).

The development of information technology in the last few decades has changed copying from an expensive process of industrial manufactor into a common case of personal use. Because of this, copyright has become a restriction on the use of property, which is to say it has become a servitude. We support the historical view, and oppose servitudes on chattels.

Those who claim copyright should impose servitudes on chattels often try to characterise the situation otherwise. The term 'intellectual property' is used to cast the right being claimed, at the time of sale, as not being a right in the copies, but rather a right in a conceptual entity, separate from the copies. If this were truly the case, and a right was being claimed in concept only, we would not object. At the time of enforcing the claimed right, however, real things are the subject of the claim, and indeed, a right could not, in reality, operate otherwise.

Copyright Infringement is Not Theft in Any Sense

Because copyright is not a traditional property right, copyright is clearly not theft in the traditional sense. Neither is it legally considered theft under copyright law.

Taking the traditional definition of theft and trying to apply it to the rights created by copyright law, copyright infringement still does not fit the definition of theft. Theft is to deprive the owner of property of its possession, however copyright is a nonpossessitory right. Using the term 'in the public domain' to refer to works not covered by copyright implies that copyright is a possessitory right--that when a work is not 'in the public domain', it is in the possession of the copyright holder--but this is not the case.

Copyright confers no use or benefit on the rightsholder for them to be deprived of aside from the potential income they might obtain by threatening to deprive others of the use of their own possessions. Loss of potential income does not imply theft. Acts such as vandalism and trespass may incur loss of potential income, but are not classified as theft as a result. Even competing with another party may incur them loss of potential income.

Copyright Can Not be Justified on the Basis of Giving People What They Deserve

Copyright provides income to authors for works, as patents provide an income to inventors for inventions, but no comparabile system provides income to theorists for theories, yet this has not generated a concern for 'theorists' rights'. In general, the law does not restrict people's personal liberty to provide other people with what they deserve, but rather only to provide people with what they have a right to.

We do think it appropriate, however, to restrict commercial activity to give people what they deserve, in so far as it serves economic optimality without creating inequity. For this reason, we support copyright restrictions on commercial activity to an extent.

Works are not always used purely for intrinsic value. Sometimes the intrinsic value of a work is entirely incidental to the value in using it. A documentary maker, for example, may wish to chronicle a place and time in a society. In order to do this accurately, they need to use any work that occupies this place and time. Any intrinsic value of the work, or lack thereof, is irrelevant to the need to use it in this case. If the documentary maker is not permitted to use the work, then they must redact reality, which they would not have had to do had the work not been published. There might also be accidental use, and requiring people to ensure this does not happen imposes a burden. Also, there might be a need to refer to a particular work (for example computer software that uses a particular file format) simply because this work is referred to by others, not because it has any particular intrinsic value.

'Fair use' or 'fair dealing' attempt to address some of these cases, but can not be relied upon to cover all cases where the value of using a work is unrelated to the work's intrinsic value.

Copyright Law is Inherently Inequitable

Intellectual works are what economists refer to as a public good. A public good is defined as something that is non-rivelous, meaning everyone can use it without limiting other people's use, and non-excludable, meaning that once made available it is available to everyone. A commonly cited example of a public good is national defence. No-one's benefit from national defence comes at the expense of anyone else's benefit, and people can not be excluded from national defence--or at least it is impractical to do so, and it can not be done without limiting people's liberty.

It is generally accepted that it is not equitable to charge for public goods with a disregard for the ability or inability to pay. The introduction of a poll tax (which, like copyright, funds public goods with a disregard for the ability or inability to pay) led to riots in Britian in 1990.

Copyright Can Not be Justified on the Basis of Giving People What They Expect

Copyright law can not be justified on the basis of giving people what they expect, because any difference between what people would be paid without copyright law, and what they expect to be paid with copyright law is a consequence of copyright law, and therefore copyright law itself creates the expectation.

Copyright Infringement Per Se is Not Equivalent to Counterfeiting, Forgery, Plagiarism, etc.

Counterfeiting, impersonation, forgery, plagiarism, cheating in tests and essay questions, and trademark infringement all involve deception in one way or another. If a copy is not falsely presented as something it is not, such as an unendorsed copy being presented as an endorsed copy, and the copier does not falsely present themselves as the author, then copying in general involves no such deception.

Neither Privacy nor Identity are Founded on 'Intellectual Property Rights'

Privacy is not an 'intellectual property' right, because privacy is not a property right at all. You can't sell your privacy such that it becomes someone else's privacy. Likewise with your identity.