John Degen Loses Argument Against Straw Man

April 23rd was the anniversary of the deaths of Shakespeare, Cervantes, and Garcilaso de la Vega, and in celebration, UNESCO has declared that day World Book Day. It is also called “World Book and Copyright Day,” but I don’t think the term is appropriate, since none of those authors’ works were ever under any form of copyright.

Someone who does think the term is appropriate is John Degan. This should not be any surprise: Degen is an outspoken copyright maximalist. He is currently Executive Director of The Writers’ Union of Canada, and Chair of the International Authors Forum; he was formerly Executive Director of the Professional Writers Association of Canada, and Communications Manager for Magazines Canada.

So, Degen decided to write an article called 5 Seriously Dumb Myths About Copyright the Media Should Stop Repeating. Here’s the first problem with that article: nobody in the media is actually repeating the “myths” he’s supposedly debunking. Here’s the second problem: all of the “truths” that he uses to debunk these “myths” are misleading, one-sided, or flat-out wrong. Even when he’s arguing against his own straw man, he loses.

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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.

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Statutory royalties prevent monopolies, not “takings”

In a recent post on The Trichordist, user “thetrichordist” (it’s not clear who that actually is) posted an article called Pre-72 Red Herrings from Pandora’s Chris Harrison (and that’s not the IPO kind). There are several things that are ridiculous about that article, but I’d like to focus on one thing in particular.

In the article, the writer says:

a statutory royalty […] is actually fair compensation for rights the law takes away from artists and copyright owners in the compulsory license that is necessary to avoid a “taking” under the 5th Amendment[.]

To be blunt, this is utter and complete horseshit. Statutory royalties are not there to prevent “takings,” because the statutory royalties were a condition of granting the rights in the first place. There was literally nothing to “take.”

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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.

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