Normative Views On Copyright

When someone says that someone else is “against copyright,” they are usually making a meaningless statement. If they simply mean “one who is against the current copyright laws,” then almost everyone is “against copyright.” If that were the case, then organizations like the RIAA, MPAA, or ASCAP are the ones who are most “against copyright,” since they are the ones who are the most active in lobbying Congress to promote changes to copyright laws.

That is pretty clearly absurd. What the accuser usually means is “they hold views on copyright that are not mine.” And because the implication is that copyright is ethical, the people making this statement do nothing but make an ad hominem attack. It holds no value in any rational discussion.

Instead, we must use some kind of terminology that captures both one’s own views, and the views of the opposing speaker. Only then can we even start to have any kind of dialog at all. Obviously, people have a wide variety of opinions on copyright law (when they have them at all). No single category, or set of categories, could possibly capture the nuances of the viewpoint held by any single person, or even of any single organization. Even so, copyright viewpoints generally fall into specific categories. This is because they hold common normative views about the nature of copyright itself.

I am going to attempt to classify those viewpoints. But before I begin, I need to make something absolutely clear. Here, as in most places, “copyright” means the rights in a work held by copyright holders after publication. Nobody here is talking about the “right of first publication.” This right is not in the least bit controversial, and is generally accepted by everyone. I am also not talking about things like plagiarism or false endorsements. These are not part of copyright law, but many people mix them up with it (especially when ethics are discussed).

Now, onto the classifications. The terminology is my own, though I believe it reflects the terminology generally in use as of this writing. Each viewpoint is classified according to the normative answers it gives to these questions:

  1. What is copyright’s relationship to natural rights?
  2. To what degree is copyright a property right?
  3. What should be the extent of rights in a copyrighted work?
  4. What is the appropriate copyright term length?
  5. What is the ultimate purpose of copyright?
  6. How should we resolve conflicts of interest between copyright holders and the public?
  7. What are the ethical justifications for copyright laws?

Out of all of these questions, the last is probably the most important, since it provides the basis for normative answers to the others.

Copyright Maximalist
This is someone who is an advocate for absolute (or near-absolute) copyright rights. Generally, a copyright maximalist holds these beliefs:

  • Copyright is a natural right, in exactly the same way that free speech rights are natural rights.
  • Copyright in a work is a literal property right, in that you “own” the works you author in exactly the same way as you “own” a house or a car.
  • Copyright holders have total ownership of a work. Any and all uses of a copyrighted work require approval from the copyright holder. Copyright holders have the absolute right to set terms and conditions for use, especially compensation rates, on a take-it-or-leave-it basis.
  • Copyright is naturally perpetual. Works should only fall into the public domain after the copyright holder has no further use for them, if at all.
  • Copyright’s purpose is to provide for the welfare of copyright holders.
  • The public interest is subordinate to the rights of copyright holders. Copyright law cannot encroach on the rights of copyright holders, even if that encroachment serves to benefit the public at large.
  • Copyright is deontologically ethical. Copyright is an ethical good in and of itself, separate from the public benefit, and is not dependent upon social consensus. Any attempts to limit copyright are a “necessary evil” at best, and simply evil in most cases.

Some, but by no means all, professional artists hold this view. They share this in common with most corporate publishers, studios, and labels, and the lobbyists that represent them. Unsurprisingly, what they all have in common is that they personally and financially benefit from maximal copyright protection. This view is has never been considered the norm in any society, or endorsed by any government body anywhere in the world (though it has been endorsed by some individual members).

Copyright maximalists advocate for changes in policy that would expand copyright. These changes include creating new rights, lengthening copyright terms, reducing fair use, creating new enforcement powers, and increasing third-party liability. The maximalist view is held by trade groups representing large media and proprietary software companies, and they have a significant lobbying presence. Because of this, and because lawmakers don’t view copyright as a “hot button” topic with voters, copyright maximalists are often able to unilaterally affect copyright policy, both at the national and international levels.

It should be obvious that anyone who has posts on the Trichordist site is a copyright maximalist.

Copyright Materialist
This is someone who is an advocate for material copyright rights. The term “copyright materialist” is purely my own, but I believe it is appropriate, because the many connotations of “material” (“substantial,” “tangible,” “pragmatic,” “financial”) actually describe this viewpoint pretty well. The materialist view rests on these beliefs:

  • Copyright is a a purely legal right, in the same way that the “right” to have a driver’s license is a purely legal right.
  • Copyright in a work is a utilitarian property right. Copyrights are treated as transferable private property, but solely because it is practical to consider them as such. Congress may change those rights at will if it is of practical benefit to do so.
  • Copyright holders have limited rights in a work. The law must allow certain uses of copyrighted works; those uses never require permission, and many do not require compensation.
  • Copyright should not be perpetual. It may be beneficial for copyright to last the life of the author, and probably for another decade or two after that, but no longer.
  • Copyright’s purpose is to stimulate artistic production, so that the public benefits through its use of those works.
  • The rights of copyright holders are limited by the public interest, and must be balanced against it.
  • Copyright is consequentially ethical. The ultimate goal of copyright is ethical, but copyright itself is simply a means to that end, and is neither ethical nor unethical in and of itself.

This view represents the current legal mainstream (though not necessarily the public mainstream). It is the view endorsed by Congress, the Supreme Court, copyright scholars, and most copyright lawyers. Despite what some people may tell you, it is also the view that is endorsed by digital rights advocates like the EFF, the CDT, or Public Knowledge.

Copyright materialists generally resist changes to copyright policies. When they do advocate policy changes, those changes are generally directed towards the standardization of copyright laws, maintaining the balance of interests between rights holders and other stakeholders, and the establishment of bright-line rules. They may also favor private solutions, as opposed to legal solutions, to problems arising from infringement.

Copyright Minimalist
This is someone who is favors minimal copyright protection, but does not want it abolished altogether. Generally speaking, copyright minimalists hold these beliefs:

  • Copyright is a government-granted privilege (in the colloquial sense), not a right. On the contrary, it is a legitimized infringement on free speech and private property rights.
  • Copyright in a work is purely a government-granted economic monopoly, and is completely distinct from a tangible property right.
  • Copyright holders should have no rights over individual public use of a work. In other words, only direct commercial use of a copyrighted work should be considered infringing.
  • Copyright should only be as long as necessary, and no longer. Once the financial burdens of creating and distributing a work have been recouped, copyright has served its purpose and is no longer necessary.
  • Copyright’s purpose should not just be to stimulate artistic production, but to grow the public domain. The public benefit comes from the productive use of creative works, not merely from their consumption.
  • The rights of copyright holders are subordinate to the public interest. The “balance” is not between copyright holders and the public, but between public benefit and public harm.
  • Copyright is a necessary evil. (This view is consequentialist like the “materialist” view, but with the added caveat that copyright itself is unethical.) Copyright law takes away others’ rights by design, and creates artificial scarcity from natural abundance; it is good solely to the degree that the public benefits from works of authorship. It is only ethical when the latter good outweighs the former harm.

This was the original view of copyright law, endorsed by Founding Fathers such as Thomas Jefferson and James Madison (later in life), by the courts (Wheaton v. Peters in the U.S., Donaldson v. Beckett in the England, Hinton v. Donaldson in Scotland), and by Congress. It is only in the latter half of the 20th century that the law swung towards the “materialist” view.

The millions of artists who release their works under a Creative Commons non-commercial license are following copyright minimalist beliefs. In the coming decades, it’s likely that this will become the majority view held by the general public (if it’s not already).

When concerned with legal policies, copyright minimalists are copyright reformers. They argue for such things as eliminating DRM, reforming the DMCA to prevent rights holder abuses, reducing or eliminating statutory damages for non-commercial infringement, or shortening copyright term lengths. At this time, copyright minimalists do not have a significant lobbying presence, and rely solely on grassroots actions.

For the record, I consider myself a copyright minimalist. (I’m sure you’re shocked.)

Copyright Abolitionist
This is someone who wants to do away with copyright altogether. It is only the copyright abolitionist who could truly be said to be “against copyright.” Copyright abolitionists generally have ideological motivations, and usually hold the following beliefs:

  • Copyright is an illegitimate infringement upon natural rights to free speech and private property ownership.
  • Copyright is not a property right at all. Its economic rights are government-sponsored price fixing, a “monopoly” in the truly negative sense of the word. Furthermore, copyright is state-enabled censorship, because it is a monopoly on publishing expressive works.
  • Copyright holders have absolutely no property rights in a published work, as distinct from ownership of a copy. For example, an author has a private property right in their unpublished manuscript for a book, but has absolutely no property right in the published copies of that book, since those copies are the private property of the purchaser.
  • Copyright should not last for any length of time whatsoever, and should be phased out or immediately dissolved.
  • Copyright’s ultimate purpose – or hidden agenda – is to enforce a publising monopoly, and as such is wholly unjustified in an open market or free society.
  • The rights of copyright holders are eliminated by the public good. The “public good” can mean individual rights held by members of the public, or avoidance of the evils of monopoly.
  • Copyright is unethical. It is consequentially unethical: the public may benefit from the works of authors, but that benefit is negligible compared to the harm caused by copyright. It may also be deontologically unethical: the “public benefit” simply cannot justify copyright’s removal of individual rights, just as slavery cannot be ethically justified, even if slavery somehow benefited society as a whole.

Very few people are copyright abolitionists, and those people may hold abolitionist views for very different reasons. At present, only specific individuals hold this view. It has never been endorsed by any government body, technology company, public interest group, or non-profit organization. Copyright abolitionists are often wary of the government and the legal system, so they are less concerned with effecting changes in policy or lobbying Congress. They are much more likely to suggest non-policy solutions, such as voluntarily releasing their own works into the public domain, changing social perceptions about copyright, or ignoring copyright restrictions (as a society) as a form of civil disobedience.

It is important to note that copyright abolitionists are not opposed to artists. They generally support and encourage the ability of artists to make a living. They simply want artists to earn that living in ways that don’t involve a post-publication monopoly (commissioned work, wages or salaries, performance fees, etc).

Of course, “copyleft” organizations often have members who are copyright abolitionists, even though the organizations themselves do not advocate outright abolition. For example, artists that release their material under a CC0 (or even CC-BY) license probably hold copyright abolitionist views. But the vast majority Creative Commons artists use some other form of license, and Creative Commons itself is “absolutely not” against copyright.

Now, keep in mind that the same person or organization may hold different viewpoints for different forms of intellectual output. For example, the Free Software Foundation holds minimalist views with regards to copyright on artistic works, uses copyright law to enforce “copyright abolition” on its own software, and is a proponent for the abolition of patents on any software (whether theirs or anyone else’s).

Also, copyright views may not be categorically uniform. Someone could hold the copyright maximalist view that copyright is deontologically ethical, but otherwise agree with the mainstream, materialist view. Or, they could hold the abolitionist view that copyrights are not “property” in any sense of the word, but otherwise hold minimalist (or even materialist) views.

But it is fairly surprising how well an individual’s views fit into a specific category. I think that by defining these terms, we can use them as a baseline for describing our own copyright beliefs and the beliefs of others.

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