Copyright is dead; Long live copyright!

February 13, 2001 | See also: Generic Drug Exports, |


[EARLY DRAFT: please comment!]

Copyright is not a right at all, but a privilege whose usefulness and time has passed.

First introduced to stop censorship, copyright was continued because it was believed it encouraged people to produce more ideas (that is, artistic works). With almost no justification, copyright has been greatly strengthened over the last century.

Copyright used to be extremely easy to enforce: very few people had the expensive aparatus needed to make copies of written material, and the public happily gave up their right to copy in exchange for a freer literary landscape with less censorship. Now, with digital information becoming commonplace, everyone has a printing-press; it is no longer expensive to copy things. In fact, making digital copies has almost zero marginal cost. This has, naturally, led to more people wanting to copy things: Web pages, digital books, digital music, and digital movies are all copied and shared by thousands of people every day. As storing art in digital form becomes even more commonplace, it takes unbelievably Draconian measures to stop people from participating in the natural act of copying things. As we examine copyright policy, we must look forward to this future of ubiquitous digital storage. We are at a threshhold: do we continue to institute hugely expensive and invasive technologies and policies to spy on people and make sure they aren't copying things, or do we abolish copyright and work towards other methods of encouraging artists to supply art?

Closely related to copyright, the extremely expensive patent system is currently being strengthened worldwide, yet there are precious few studies about its effectiveness. Given the enormous costs, and giant social problems of attempting to turn ideas into property, the patent system can only continue if it provides enormous returns to the public. This doesn't appear to be the case. Furthermore, contrary to popular perception, a patent doesn't provide the patentee with any protection whatever: it merely gives her the legal right to sue others. Given the high cost of patent litigation, it seems clear that patents do nothing to serve the individual inventor's good and everything to serve large corporations' good.

Besides being socially unjust, copyright and patent laws are expensive, hard to enforce and out-dated. They need to be eliminated.


Copyright grants people (or corporations, since they enjoy all the rights of natural people) the exclusive right to reproduce (that is, ``copy'') a certain sequence of words, sounds or colours. At its base form, since any picture, word or sound can be encoded on a computer, copyright grants some person or corporation the exclusive right to dictate who can reproduce a certain number. Copyright (in Canada) lasts for 50 years after the death of the author of the particular work.

Patents grant people or corporations the exclusive right to use or implement a particular concept. For example, has exclusive rights to use the concept of ``one-click shopping'' on the Web, whereby they store the particulars of a user for future reference. For another example, Dell corporation has the exclusive right to use their business model of producing custom personal computers from components a customer selects from their Web site (this is a US patent). As yet another example, Unisys has the exclusive right to use a particular (relatively simple) algorithm for compression called LZW (although they didn't actually develop the algorithm). Such exclusive use rights last for 20 years, and cost up to $1 million (US) to secure.

To simplify matters, I usually refer to copyrightable and patentable things simply as ``ideas''. This is not a bad label: paintings, photographs, recordings and the like all express ideas; essays outline particular ideas in detail; scientific papers propose and justify theoretical ideas; patents outline and claim ownership over particular methods, procedures, chemicals or structures.

Origins of Copyright

Marci Hamilton provides a goodoverview of the historical origins of copyright law. Most people seem to agree that the first real outbreak of copyright was the Statute of Anne in the early 1700's. The intent of this law was not to recognize that authors ``own'' the ideas they present, but to attempt to limit the censorship powers of the church through The Stationers' Company. Indeed, even the USConstitution recognizes that there is no inherent right of authors to control who gets to reproduce their works; the only reason Congress is allowed to institute copyright or patent laws is ``[t]o promote the progress of science and useful arts''. The framers of the US Constitution recognized that these ideas were not property at all by specifying that any such exclusive rights must be limited in duration. Note that there is no requirement for Congress to grant such rights; they may be granted if they advance science and art. Furthermore, this clause would seem to preclude the ownership of patents or copyrights by corporations (as they are not authors or inventors at all).

It is sad that the CanadianConstitution is so poorly written and includes no justification for including copyright. Indeed, it does no more than enumerate, ``...the exclusive Legislative Authority of the Parliament of Canada extends to ... 22. Patents of Invention and Discovery. 23. Copyrights. ...'' which is almost exactly useless, especially since neither ``Copyrights'' nor ``Patents'' is defined. It is somewhat interesting to note that the Charterof Rights and Freedoms specifies that ``Everyone has the ... freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.'' Doesn't copyright limit the freedom of expression and freedom of ``other media of communication'' by allowing authors to deny people the ability to publish things? EvangelicalFellowship of Canada v. Canadian Musical Reproduction RightsAgency appears to have had a chance to consider a related issue: the Constitutionality of charging fees on blank tapes et al. The court unfortunately skirted the issue.

Whether or not copyright is wholly or partially unconstitutional, until such a time as a challenge is successfully mounted we must live with the Copyright Act and the Patent Act. The Copyright Act cannot even pretend to be protecting the interests of authors, as a copyright doesn't expire until 50 years after the death of theauthor. Clearly, if the Act was intended solely to recognize some right of authors to control their work, such a right would expire along with the author. Furthermore, since corporations are considered people under Canadian (and US) law, they can (and do) hold copyrights; since a corporation can't possibly author anything, this is another huge case where copyright is clearly not serving the interests of authors at all.

Who's interest does modern copyright law serve, then?

Paradoxically, it would appear that copyright is being used to do exactly the things it originally set out to prevent: censor people. Although not based on religious fervor, corporations are currently using copyright law: to prevent fans of television shows from displaying their fiction [news]; to institute invasive and Draconian methods of preventing people from copying things, like the new ATA hard-drive specification [k5]

[/.] or content obliterating digital TVs [/.]; to attempt to make open protocol definitions proprietary [/.]; and shut down file-sharing networks like Napster. These are some of the legal uses of copyrights, and suit corporate censorship quite well. Although the differences compared with The Star Chamber of Statue of Anne time are significant, the implications are clear: copyright law is now aiding corporate censorship, which is exactly what the beginnings of copyright law were meant to prevent.

Copyright was originally a limitation on the rights of publishers; this made sense, as there were only a few publishers and lots of readers. Now, we are all publishers; does it still makes sense to limit the rights of publishers?

Why Copyright?

In its hopes of encouraging the production of ideas, copyright allows certain people (ostensibly authors, but in practice corporations control many copyrights) to control what other people may do with their property. Specifically, copyright dictates that only some people can produce certain numbers (since anything can be encoded as a number). Attempts to enforce copyright have already lead to grossly Draconian measures (briefly outlined in the previous section), and promise to lead to many more in the future, given the ease with which digital information can be copied.

For example, many countries (including Canada) presume that people are guilty of certain copyright crimes before they even commit them! Levies arecharged on blank media such as audio tapes, and the proceeds are distrubted to certain musical artists. With these levies going only to the biggest musical artists, less well-known artists suffer. In fact, artists who wish to record their own music onto tape or CD by themselves actually pay money to their more-successful counterparts. Levies of this type are decided by the Copyright Board of Canada, and the past decisions are only available by buying a $75 book.

Television programming producers are trying to force TV manufactures to produce digitalTVs with systems which disallow the user from copying certain broadcasts or shows. The amount of copying allowed is determined by the broadcaster (which in many cases is also the content producer). Sound invasive? Then the industry group pushing for a standard in hard-drives will sound even worse. Under thisproposal, hard-disks will have content encoded in a manner such that the drive itself can determine what type of content each file holds, and will delete or refuse to copy things determined to be copyrighted material. One may think that nobody will buy such monstrous devices, but with almost every hard-drive manufacturer adhering to the ATA standard (of which the above measure will become a part), it may be nearly impossible to buy a hard-disk without such a scheme. Alternatively, many software providers may make their software refuse to work with non-compliant drives (Microsoft, of course, being a likely culprit).

Microsoft has made proprietary extensions to the Kerberos authentication protocol (which enjoys an open definition) and asks that people who wish to view their specification agree to not release it. This makes it impossible for free software authors to implement the extensions, effectively making Kerberos-complaint software unable to inter-operate with Windows' implementation. This might at first seem to be against Microsoft's interests until one realizes the ubiquity of Windows. This fits in nicely with Microsoft's leaked intentions to maintain proprietary control of open standards -- intentions made possible by copyright and patent law.

DVD content manufacturers belong to an association called the Motion Picture Association of America (MPAA). This group came up with a standard way of scrambling the content of DVDs (unimaginatively called CSS for Content Scrambling System) such that only licensed software and hardware authors could make devices or programs which can play DVDs. This precludes free software authors from creating such a device or program to play legitimately-obtained DVDs. However, some enterprising programmers were able to determine the encryption scheme used and wrote a program called DeCSS to decode the DVDs. This allows free software to be written which plays DVD movies, since one can now obtain information about the CSS without signing a NDA. Unfortunately, an ongoing case will be deciding the fate of people providing information about this program, and about the program itself. Some of the arguments use the newly-minted US law called the Digital Millennium Copyright Act which strengthens the measures against people allegedly breaking copyright law. It even makes it illegal to develop or possess programs which could be used to ``circumvent'' copyright protection measures -- even if such circumvention would fall under current ``fair use''. More such laws are inevitable if we continue down the path of attempting to treat ideas as property.


Granting such exclusive rights as outlined by copyright and patent law must be justified in some manner. An overview of typical reasoning I've heard in conversations include:

Copyright recognizes the artist's property. This, of course, is ludicrous as we've been over. If ideas really are property, then the ownership of them would never ``expire'': your car never turns into non-property; a sack of rice you own isn't subject to only a few years as property; a hammer you have can't be taken by others after some time period. Ideas are not property for the simple fact that me making a copy of your essay (or picture, or whatever) doesn't harm you or deprive you of your essay; there are now simply two essays. A useful analogy might be to consider the situation if we had machines which could copy objects; would it be a crime to make an exact copy of a cup of coffee? Certainly not, but this is exactly what copyright posits.

As Mark Alfino pointsout, ``[t]he legal principle at stake in the Donaldson case has significant ethical implications. If copyright is a form of limited monopoly granted through statute, based on policy considerations, and not an absolute common law right, the ethical burden of proof shifts to copyright holders to show that their property interests are more important than the public good of having access to information.'' This proof has not been forthcoming.

Artists deserve compensation for their work. No, they don't; only some artists do. Specifically, artists who produce quality work. Any such ``compensation'', however, shouldn't include the right to dictate what others can do. Specifically, copyright dictates what I can and cannot do with paper, pencils or computers I may own. For example, if you write an essay and post it to your Web site, copyright allows you to dictate that I can't use MY computer to reproduce your essay. In the past, copyrights and patents didn't exist. Did art exist? Yes. Did artists receive compensation for their work? Obviously, or they wouldn't keep producing it. It is worth pointing out that without copyright, nobody would be forced into producing that which they don't want to: if someone is unhappy with the actual or expected compensation they will receive for producing some art, they shouldn't produce that art.

Also worth considering is the fact that a great number of idea-producers are already being compensated for their work: professors doing research, private researchers performing experiments, artists producing art under contract, and workers realizing improvements in existing designs are all receiving a salary for doing their idea-development. There are also alternativemethods of compensation being proposed. Would commerce grind to a halt without the protection of patent and copyright law? One must hope not, or it is a flimsy system indeed. Furthermore, there is some evidence to indicate that creative work suffers from having an explicit monetary reward as its goal.

Other people shouldn't be able to claim they came up with my idea. Or, other people will put their name on my work without copyright. This is, of course, simply lying (or ``plagerism'') and it should certainly remain illegal, but this is not something which requires copyright to enforce. (Plagerism is currently not covered by copyright law at all). Indeed, I would have no argument with copyright law if its sole goal were to prevent lying about the authors of works.

Social Problems with Copyrights and Patents

Patents encourage researchers to work in secretive, private ways. This goes against how science typically occurs; usually, researchers are eager to tell each other about their discoveries, in the hopes that their peers can point out improvements and problems with their work, thereby quickly furthering the advance of the field. Sadly, the Canadian patent searching database maintained by PATSCAN recommends:


In university environments, there is pressure to publish and present papers on one's research work in order to build up reputation and maintain continuing support. As is evident, such publication flies directly in the face of the absolute novelty philosophy of most patent legislation. To protect oneself, the person must simply resist publication until a patent application for the invention is filed.

Encouraging secrecy? This seems like an exceedingly poor way to do science. Science benefits from vigorous discussion of theories and experiments, which can best take place in an open atmosphere without some lurking fear that your peer will be able to run off to the patent office and obtain exclusive rights to some knowledge.

The recently concluded sequencing race between thepublic Human Genome Project and Celera Genomics underscores some ofthe problems with closed and secretive science. Do we want theknowledge produced by science to be held by an elite few?

Patent law thrives by encouraging people to think of ideas as property(an absurd notion) and -- by extension -- to consider the use ofothers' ideas to be theft.

Let's say your friend has suggested that your couch might look betteragainst the opposite wall. You like his idea and decide to implementit; are you a thief? Is this immoral? Clearly not, but the patentsystem encourages such damaging thoughts. Like, say, if someonethought of the exclusive-OR function applied to video monitors andreceived US patent #4,197,590 making it illegal for you to write software which draws a mouse-cursor, say. After finding out about some good idea, you should not be limited in implementing it.

The reader may be aware that there is currently a fair amount of public debate surrounding the patenting of animals. Specifically, many patents have been granted on the DNA of various animals (including humans); many view this as un-ethical. When listening to arguments along these lines, think about how they apply to ideas in general. If it's not ethical to ``own'' particular DNA sequences, how can it be ethical to ``own'' particular sequences of letters? Indeed, DNA is typically represented by sequences of the Roman letters C, G, A and T.

We teach our children throughout their young lives that they must share; share their toys, their feelings, their experiences. Then, we throw these valuable lessons away and create patent systems which encourage exactly the opposite: they make sharing illegal, and punishable by huge fines; they encourage scientists to keep their discoveries secret; they disallow people from using certain ideas. Does this hypocrisy not point to deep problems with the concept of pairing owners with ideas?

Beyond encouraging anti-social behavior such as secrecy, patents also cost a whopping amount of money. For example, ``The senior patent counsel of one of the world's major researched-based pharmaceutical companies estimates, for example, that it currently costs between $750,000 and $1,000,000 to obtain comprehensive worldwide patent protection for an important chemical compound, and that figure is growing at a rate of 10% each year.''

Is this figure within reach of an individual? No. How many more ``important chemical compounds'' might be discovered by spending this sum on additional research?


Over the last century, we have been rapidly expanding the scope, terms and coverage of copyrights and patents. Little research exists comparing the costs of these systems to their benefits; little public debate has occurred over whether or not it is a good idea for the public to give up many of their rights in ``exchange'' for unspecified benefits.

Cramming ideas into the ill-fitting mold of property doesn't work; proprietary knowledge slows down science, restricts debate and easily allows for censorship by more powerful entities. We must reject intellectual ``property'' laws and encourage any policies or groups which denounce their rampant and unchecked spread.

Private mail only; don't publish anywhere.