What Type Of Right?

When people use the word “right,” they often mean drastically different things. For example, the right to free speech is very different from the right to make a right turn at a red light, and both are different from the right to receive a public education. Talking about rights often enters the intersection of jurisprudence and ethics, so people have been discussing this for a long time.

In this article, I’m going to explain the various types of rights, and then relate them to copyright law.

In a very general sense, rights can be divided up into two “axes” of inquiry; two different ways to categorize rights that can be independently considered. The two axes are natural rights vs. legal rights, and liberties vs. claims.

The first axis differentiates between natural and legal rights:

  • Natural rights are innate, and held simply by virtue of being a human being. (I’ll leave out animal rights in this discussion.) Natural rights are not created by the government, and exist independently of law. Colloquially, natural rights are often called “human rights” or “civil liberties.”
  • Legal rights are rights that are created by the government, and would not exist without it. Legal scholars sometimes call this positive law. Most legal rights are statutory rights, rights that are created by legal statutes.

For example, the right to free speech is a natural right, but the right to make a right turn at a red light is purely a legal right. It’s important to note that natural rights are protected by law (one would hope), so “legal rights” and “the rights you have under the law” are not the same thing, at least for the purposes of this discussion.

Natural rights are sometimes called “common-law rights,” but this is technically incorrect (“the best kind of incorrect!”). The term “common law” means a law that is created by the courts (the judiciary), rather than by statute (the legislature). People sometimes use the term “common law” to refer to state statutes (as opposed to federal statutes), but this is also technically incorrect.

Common-law rights are defined by case law, but case law also defines how statutes are interpreted, and the rights created by statute are not natural rights. So “common-law rights” and “natural rights” are not entirely synonymous. Even so, if someone has a “common-law right,” and it’s not a statutory right, then it’s a pretty good bet that society considers it a natural right.

The second axis differentiates between liberties and claims:

  • Liberties are freedoms: the freedom to do something, or not do it, according to whim. Liberties may be expressed in terms of non-interference, or they may be expressed in terms of permissions. Liberties are often called “negative rights,” but I won’t use that term (see below for an explanation).
  • Claims are rights that create obligations or duties in others. Often, those obligations and duties require more than simple non-interference (though that is also included). Claims are often called “positive rights” (but, again, not by me; see below).

Liberties and claims are almost always in conflict with each other. If I have a liberty right, then you do not have a claim against me exercising that right. On the other hand, if I have a claim right, then you do not have the liberty of ignoring the duties created by it.

Liberty rights create claim rights, since if I have a liberty right, then I have a claim against any of your actions that prevent me from exercising it. But not all claim rights are created by liberty rights; I may have a claim against your actions, even if those actions would not prevent me from exercising any of my liberties.

There is another usage of the terms “negative right” and “positive right,” where they mean almost the opposite of the usage above. Under this usage, negative and positive rights relate only to liberties and their removal. A “positive right” is a right to act (a liberty), and a “negative right” is a right to prevent actions by others. So, the right of a teenager to attend high school is a “positive right” in this sense, and the right to prevent the high school from unjustly expelling that student is a “negative right.” But the right to a public education is neither a “positive right” nor a “negative right.”

I have actually used this terminology myself, but it is incorrect; it is not how the terms are used in jurisprudence or by legal scholars. To avoid confusion, I’m going to avoid using those terms altogether. The terms “liberty rights” and “claim rights” will do just fine.

Hohfeldian analysis

The distinction between liberty rights and claim rights comes from a legal theorist named Wesley Newcomb Hohfeld, and were enumerated in his 1917 treatise Fundamental Legal Conceptions as Applied in Judicial Reasoning (PDF).

Hohfeld used the term “right” to mean claim right, and “privilege” to mean liberty right. His usage reflected the common judicial usage of his time. But it is important to realize that Hohfeld’s use of the terms “right” and “privilege” are not the terms we would use today. For example, Hohfeld’s use of the term “privilege” bears absolutely no relation to common uses of the term, as in “white privilege” or “a privileged upbringing.” And many of what we would call civil rights – such as the right to free speech – are what Hohfeld would call privileges.

Hohfeld was very clear that he was not trying to put “rights” on a higher level than “privileges;” his use of the term “privilege” was not in any way perjorative. He considered both equally important, and was using those terms purely as legal terms of art. Unfortunately, some legalists are not so scrupulous, and will deliberately conflate the Hohfeldian terms with their colloquial usage. (If you ever run across someone who claims that an act is “not a right, but merely a [Hohfeldian] privilege,” then you will know he’s lying because his lips are moving.) In general, unless you are explicitly doing a Hohfeldian analysis, you should avoid his use of the terms altogether. Instead, you should use “liberty rights” and “claim rights,” as those are the modern, correct terms.

In addition to claims and liberties, Hohfeld also used terms for the right to alter legal relationships. A power is the right to create claims, or remove liberties (this could be by the Government, or through legal contracts). An immunity is the right to not have your liberty rights removed, or be obligated to act according to others’ claim rights. Thus, to use Hohfeldian terms, powers and immunities are jural opposites, just as liberty rights and claim rights are jural opposites.

Hohfeld also named what he called jural correlatives. If one person has a right (which Hohfeld called an entitlement, but you shouldn’t), then it creates an obligation in others to respect that right (which Hohfeld called a burden). A duty is the jural correlative of a claim right; a no-right is the jural correlative of a liberty right; a liability is the jural correlative of a power; and a disability is the jural correlative of an immunity.

Hohfeld’s notions of jural correlatives may be useful for legal theorists, but I don’t find them all that useful when discussing rights in general. Most people understand rights in terms of their jural opposites; you think of the First Amendment as an “immunity” from the government’s “power,” not a “government disability.”

One thing that Hohfeld got right was in pointing out that rights (of all sorts) are defined in terms of relationships. Take, for example, the ability to enter into a contract. In terms of the relationship between the people who sign it, this ability is a power, since it alters the rights of those people with regards to each other. But in terms of the relationship between the government and its citizenry, it is a liberty right, since people generally have the right to enter into whatever contracts they choose, without government intervention.

One final note. Since Hohfeld was strictly a legal theorist, he did not make any distinction between natural rights and legal rights. He was only concerned with the rights you have under the law, not how those rights originated.

Copyright-related rights

Now that we have the terminology under our belts, let’s examine how they relate to copyright. I’ll compare three copyright-related rights: the rights enumerated in the Constitution, the rights held by copyright holders, and fair use.

The “copyright clause” is in Article I, Section 8, Clause 8 of the United States Constitution. Leaving out the parts that apply to patents, that clause says:

Congress shall have the power to promote the Progress of Science, by securing for limited Times to Authors the exclusive Right to their Writings.

Using the terminology above, it is clear that the Constitution is granting a legal power to Congress. It is not actually granting any rights to authors directly; it is saying that Congress has the power to grant those rights, if it so chooses.

The wording of the Constitution places limits, or conditions, on that power. Any rights that are granted by Congress must:

  • “promote the Progress of Science” (here, “science” is closer to what we would call “learning” today);
  • be “for limited Times;”
  • be “exclusive” “to Authors” (not, say, to publishers); and
  • cover “their Writings” (so no non-human authorship, and it can’t protect things that aren’t their writings, like their reputation).

In theory, if Congress attempted to pass a statute that didn’t meet all of these requirements, that statute would be unconstitutional. Since it is a power of Congress, then in theory, it is also limited by other parts of the Constitution, like the First Amendment. Of course, theory and practice are two different things.

Now, what about the rights that are held by copyright holders? Here, as always, I am talking about the rights enumerated in 17 USC 106: the exclusive, post-publication rights to reproduction, distribution, and public performance (or display) of a work.

These rights are legal claim rights. They are not liberty rights, since authors would have the liberty to reproduce, distribute, and publicly perform their works, even if copyright didn’t exist; these are civil liberties protected by the First Amendment. Instead, they create claims against other people – they exclude others from the liberty of reproducing, distributing, or publicly performing a work.

Those rights are wholly created by Congress, under the power granted to it by the Constitution, and are not natural rights. This has been the law of the land since Wheaton v. Peters (1834), the very first Supreme Court copyright case. It has also been the law in England since Donaldson v. Beckett (1774), and in Scotland since Hinton v. Donaldson (1773).

So, what type of right is fair use? I think it is pretty clearly a natural liberty right.

The right to make fair use of a work under copyright is currently protected by statute in 17 USC 107. But it wasn’t written into the statutes until the 1976 Copyright Act, and before that, it was a common-law right. The first U.S. copyright case was Folsom v. Marsh (1841), a Massachusetts copyright case. Here, Justice Story created what would eventually become the standard for a fair use determination: “In short, we must often look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.” The current fair use statutes use almost identical wording.

The right to free speech is a classic example of a natural liberty right. That right creates an immunity from government power in the form of the First Amendment. Fair use serves the purpose of reducing conflicts between copyright law and the First Amendment. See, for example, Copyright and Free Speech Rights (PDF) by Patterson and Birch. Without fair use (and additional copyright restrictions, like the idea/expression dichotomy), copyright would be an unconstitutional violation of free speech rights.

Does this mean that fair use is “more important” than copyright rights? Well, yes, but that’s why courts are granted such a wide lattitude when determining what is and is not fair use. Statutory claims may sometimes trump natural liberties if it is to the general benefit of society, and copyright’s beneficiary is society in general. But those claims cannot be absolute, or the loss in liberties will be worse than the benefits arising from the claims.

It is the job of the fair use doctrine to make exactly that determination.

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One thought on “What Type Of Right?

  1. There are only two kinds of rights, “rhetorical” and “practical”. A right claimed as “natural” or “God given” is purely rhetorical, because there is no objective criteria to establish that God or Nature prefers one human right over another. All practical rights arise by agreement. We agree to respect and protect a right to property for each other. To secure this right for each other we create laws, police, courts, and jails. To the degree that we enforce this agreement, our rights are real and practical. To the degree that we fail to enforce our agreement, our rights become merely rhetorical claims.

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