29 May 2009

The Dark Side of Copyright

I've said on more than one occasion that I have serious misgivings about copyright, both in principle and in practice, especially given the way the law has been steadily expanded to outlaw tools for copying and the circumvention of copy protection, rather than just the act of copying itself.

A prime example of the less desirable aspects of copyright is being played out in Geneva at the UN’s World Intellectual Property Organisation, where a number of governments are attempting to block a treaty which would enable the import and export of books in digital formats which are usable by people with visual impairments [
1][2]. The fact that this move is also in effect anti-free trade makes it doubly annoying.

My position on copyright (and by the same token, patents) is fairly straight forward; I don’t believe you can treat ideas as property in the same way you can with material objects. It just doesn’t make sense to me; ideas aren’t discrete or scarce, so it’s impossible to say where one idea ends and another begins. If you were the first person to make a chair and I took the chair that you made, it’s possible to work out what I’ve done and to rectify the situation. On the other hand, if I see your chair and then later I go and make one of my own, there’s no way of knowing if that idea came to me because of seeing your chair, or if it came to me completely independently. It gets even more confusing if I see your chair and then go and make a sofa. Does the sofa count as a derivative work of your chair, or is it a completely separate idea?

That’s not to say that I believe people shouldn’t have any rights over their ideas. If you have an idea in your head, I believe that your right of self-ownership means that nobody else has any right to force you to reveal it. By extension, if you wanted to offer to reveal an idea to somebody on the condition that they sign a contract agreeing not to do x, y or z, that should be within your rights too, but, unlike copyright, that contract would not give you any rights over somebody who has not directly entered into an agreement with you.

As a property right, copyright doesn’t make sense, but when looked at as a state mediated bargain it looks more rational. In fact, that was the original justification used for copyright law; the principle was that, by giving authors a clear revenue stream, it would encourage more writing which would eventually fall into the public domain and thereby increase the general body of art and knowledge. The key is that the intention of the law was to create a general public benefit, not to enrich authors; the latter was just a means to achieve the former.

One of the key questions that should be asked of copyright, as with any state expenditure or privilege granting, is “does this deal create a clear public benefit?” If the answer is no, then the situation can’t be justified. If copyright laws put people in a position where they are legally prevented using new technologies to access information which would otherwise be inaccessible to them, then I don’t believe those laws stand up to the public benefit test and they need to be either heavily amended or abolished.


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