Criticism of copyright

The symbol of Kopimi, an anti-copyright initiative developed by the Piratbyrån, a Swedish organisation actively opposing modern copyright law and practices, and the previous operators of BitTorrent tracker The Pirate Bay, before it was spun off as an independent organisation.

Opposition to copyright refers to the complete or partial opposition to prevalent copyright laws. Copyright is defined as the exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something such as a literary, musical, or artistic work.

The classic argument for copyright is the view that granting developers temporary monopolies over their works encourages further development and creativity by giving the developer a source of income; normally copyright is enforced within a framework of the Berne Convention, instituted by Victor Hugo and first enacted in 1886. A central anti-copyright argument is that copyright has never been of net benefit to society and instead serves to enrich a few at the expense of creativity. Some anti-copyright groups may question the logic of copyright on economic and cultural grounds. Furthermore, in the context of the Internet and Web 2.0, it can be argued that copyright law needs to be adapted to modern information technology.

Organisations and scholars

Groups advocating the abolition of copyright

Main article: Copyright abolition

Demonstration in Sweden in support of file sharing, 2006.

Pirate Cinema and groups like The League of Noble Peers advance more radical arguments, opposing copyright per se. A number of anti-copyright groups have recently emerged in the argument over peer-to-peer file sharing, digital freedom, and freedom of information; these include the Association des audionautes and the Kopimism Church of New Zealand.

In 2003, Eben Moglen, a professor of Law at Columbia University, published the dotCommunist Manifesto, which re-interpreted the Communist Manifesto by Marx in the light of the development of computer technology and the internet; much of the re-interpreted content discussed copyright law and privilege in Marxist terms.

Recent developments related to BitTorrent and peer-to-peer file-sharing have been termed by media commentators as "copyright wars", with The Pirate Bay being referred to as "the most visible member of a burgeoning international anti-copyright—or pro-piracy—movement". One well-publicised instance of electronic civil disobedience (ECD) in the form of large scale intentional copyright infringement occurred on February 24, 2004, in an event called Grey Tuesday. Activists intentionally violated EMI's copyright of The White Album by distributing MP3 files of a mashup album called The Grey Album, in an attempt to draw public attention to copyright reform issues and anti-copyright ideals. Reportedly over 400 sites participated including 170 that hosted the album with some protesters stating that The Grey Album illustrates a need for revisions in copyright law to allow sampling under fair use of copyrighted material, or proposing a system of fair compensation to allow for sampling.

Groups advocating changes to copyright law

French group Association des audionautes is not anti-copyright per se, but proposes a reformed system for copyright enforcement and compensation. Aziz Ridouan, co-founder of the group, proposes for France to legalise peer-to-peer file sharing and to compensate artists through a surcharge on Internet service provider fees (i.e. an alternative compensation system). Reportedly, major music companies have equated Ridouan's proposal with legitimising piracy. In January 2008, seven Swedish members of parliament from the Moderate Party (part of the governing coalition), authored a piece in a Swedish tabloid calling for the complete decriminalisation of filesharing; they wrote that "Decriminalising all non-commercial file sharing and forcing the market to adapt is not just the best solution. It's the only solution, unless we want an ever more extensive control of what citizens do on the Internet."

Groups advocating using existing copyright law

Main article: Public copyright licence

Groups that argue for using existing copyright legal framework with special licences to achieve their goals, include the copyleft movement and Creative Commons. Creative Commons is not anti-copyright per se, but argues for use of more flexible and open copyright licences within existing copyright law. Creative Commons takes the position that there is an unmet demand for flexibility that allows the copyright owner to release work with only "some rights reserved" or even "no rights reserved." According to Creative Commons many people do not regard default copyright as helping them in gaining the exposure and widespread distribution they want. Creative Commons argue that their licences allow entrepreneurs and artists to employ innovative business models rather than all-out copyright to secure a return on their creative investment.

Scholars and commentators

Scholars and commentators in this field include Lawrence Liang, Jorge Cortell, Rasmus Fleischer, Stephan Kinsella, and Siva Vaidhyanathan.

Traditional anarchists, such as Leo Tolstoy, expressed their refusal to accept copyright.

Non-scarcity

Main article: Artificial scarcity

There is an argument that copyright is invalid because, unlike physical property, intellectual property is not scarce and is a legal fiction created by the state. That is, infringing on copyright, unlike theft, does not deprive the victim of the original item, and so enforcement of copyright law constitutes aggression on the part of the state.

Historical comparison

It is entirely unclear that copyright laws are economically useful, even for the majority of authors. Thus Höffner compared the economic effects copyright law had on authors and publishing in the United Kingdom to those in Germany in the first part of the nineteenth century when in Germany such laws had not been instituted, and found that more books were printed and read in Germany where authors, in general, also made more money.

Information technology related concerns

One of the founders of Piratbyrån, Rasmus Fleischer, argues that copyright law simply seems unable to cope with the Internet, and hence is obsolete. He argues that the Internet, and particularly Web 2.0 have brought about the uncertain status of the very idea of "stealing" itself. He argues that in an attempt to rein in Web 2.0, copyright law in the 21st century is increasingly concerned with criminalising entire technologies, leading to recent attacks on different kinds of search engines, solely because they provide links to files which may be copyrighted. Fleischer points out that Google, while still largely uncontested, operates in a gray zone of copyright (e.g. the business model of Google Books is to display millions of pages of copyrighted and uncopyrighted books as part of a business plan drawing its revenue from advertising). In contrast, others have pointed out that Google Books blocks-out large sections of those same books, which motivates purchases, and supports the legitimate interests of rightsholders.

Fleischer's central argument is that copyright has become obsolete with regards to the Internet, that the cost of trying to enforce it is unreasonable, and that instead business models need to adapt to the reality of the darknet.

Cultural arguments

Freedom of knowledge

"Free Beer" demonstrator supporting the "freedom of knowledge" idea: "Copyright is preventing access to knowledge" (2007).

Groups such as Hipatia advance anti-copyright arguments in the name of "freedom of knowledge" and argue that knowledge should be "shared in solidarity". Such groups may perceive "freedom of knowledge" as a right, and/or as fundamental in realising the right to education, which is an internationally recognised human right, as well as the right to a free culture and the right to free communication. They argue that current copyright law hinders the realisation of these rights in today's knowledge societies relying on new technological means of communication.

Such groups see copyright law as preventing or slowing human progress. They argue that the current copyright system needs to be brought into line with reality and the needs of society. Hipatia argues that this would "provide the ethical principles which allow the individual to spread his/her knowledge, to help him/herself, to help his/her community and the whole world, with the aim of making society ever more free, more equal, more sustainable, and with greater solidarity."

Authorship and creativity

Lawrence Liang, founder of the Alternative Law Forum, argues that current copyright is based on a too narrow definition of "author", which is assumed to be clear and undisputed. Liang observes that the concept of "the author" is assumed to make universal sense across cultures and across time. Instead, Liang argues that the notion of the author as a unique and transcendent being, possessing originality of spirit, was constructed in Europe after the industrial revolution, to distinguish the personality of the author from the expanding realm of mass-produced goods. Hence works created by "authors" were deemed original, and merges with the doctrine of property prevalent at the time.

Liang argues that the concept of "author" is tied to the notion of copyright and emerged to define a new social relationship — the way society perceives the ownership of knowledge. The concept of "author" thus naturalised a particular process of knowledge production where the emphasis on individual contribution and individual ownership takes precedence over the concept of "community knowledge". Relying on the concept of the author, copyright is based on the assumption that without an intellectual property rights regime, authors would have no incentive to further create, and that artists cannot produce new works without an economic incentive. Liang challenges this logic, arguing that "many authors who have little hope of ever finding a market for their publications, and whose copyright is, as a result, virtually worthless, have in the past, and even in the present, continued to write." Liang points out that people produce works purely for personal satisfaction, or even for respect and recognition from peers. Liang argues that the 19th Century saw the prolific authorship of literary works in the absence of meaningful copyright that benefited the author. In fact, Liang argues, copyright protection usually benefited the publisher, and rarely the author.

Ethical issues

The institution of Copyright brings up several ethical issues. Selmer Bringsjord argues that all forms of copying are morally permissible (without commercial use), because some forms of copying are permissible and there is not a logical distinction between various forms of copying.

Edwin Hettinger argues that natural rights arguments for intellectual property are weak and the philosophical tradition justifying property can not guide us in thinking about intellectual property.

Shelly Warwick believes that copyright law as currently constituted does not appear to have a consistent ethical basis.

Andrew T. Forcehimes argues that the way we think about copyrights is inconsistent, because every argument for (physical) public libraries is also an argument for stealing ebooks and every argument against stealing ebooks would also be an argument against libraries.

Criticism of anti-copyright

Main article: Philosophy of copyright § Justifications for copyright

Copyright proponents such as Sumner M. Redstone of the Progress and Freedom Foundation, majority owner of CBS Corporation, Viacom, MTV Networks, and BET, argue that copyright drives the economy by compelling creativity, and is a fundamental right for both creators and consumers. He argued that all proposed alternatives to copyright protection do not allow for viable business models, as content creators would not have incentive to produce their products if they cannot be guaranteed payment. "Propose to a dairy farmer that the milk he sells become a free commodity available to all, and he will stop cultivating cows. Why buy the cow, when consumers can get the milk for free?'"'

Richard Verrier, editor at Los Angeles Times who covers labour and production issues in Hollywood, wrote in an article that piracy undermined independent filmmakers, who, unlike larger studios, would not be able to afford revenue loss. Independent filmmaker Greg Carter described it as; "It feels like someone is walking into your house and stealing your furniture... The big studios can absorb it, but guys like me, we're not millionaires. We're fighting like crazy for every dollar, every nickel, every penny just to survive in this marketplace."

Morality

According to Article 27 of the Universal Declaration of Human Rights, "everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author". Although the relationship between intellectual property and human rights is a complex one, there are moral arguments for intellectual property.

The arguments that justify intellectual property fall into three major categories. Personality theorists believe intellectual property is an extension of an individual. Utilitarians believe that intellectual property stimulates social progress and pushes people to further innovation. Lockeans argue that intellectual property is justified based on deservedness and hard work.

Various moral justifications for private property can be used to argue in favour of the morality of intellectual property, such as:

1. Natural Rights/Justice Argument: this argument is based on Locke’s idea that a person has a natural right over the labour and/or products which is produced by his/her body. Appropriating these products is viewed as unjust. Although Locke had never explicitly stated that natural right applied to products of the mind, it is possible to apply his argument to intellectual property rights, in which it would be unjust for people to misuse another's ideas. Locke's argument for intellectual property is based upon the idea that laborers have the right to control that which they create. They argue that we own our bodies which are the laborers, this right of ownership extends to what we create. Thus, intellectual property ensures this right when it comes to production.
2. Utilitarian-Pragmatic Argument: according to this rationale, a society that protects private property is more effective and prosperous than societies that do not. Innovation and invention in 19th century America has been said to be attributed to the development of the patent system. By providing innovators with "durable and tangible return on their investment of time, labor, and other resources", intellectual property rights seek to maximise social utility. The presumption is that they promote public welfare by encouraging the "creation, production, and distribution of intellectual works". Utilitarians argue that without intellectual property there would be a lack of incentive to produce new ideas. Systems of protection such as Intellectual property optimise social utility.
3. "Personality" Argument: this argument is based on a quote from Hegel: "Every man has the right to turn his will upon a thing or make the thing an object of his will, that is to say, to set aside the mere thing and recreate it as his own". European intellectual property law is shaped by this notion that ideas are an "extension of oneself and of one’s personality". Personality theorists argue that by being a creator of something one is inherently at risk and vulnerable for having their ideas and designs stolen and/or altered. Intellectual property protects these moral claims that have to do with personality.

Lysander Spooner (1855) argues "that a man has a natural and absolute right—and if a natural and absolute, then necessarily a perpetual, right—of property, in the ideas, of which he is the discoverer or creator; that his right of property, in ideas, is intrinsically the same as, and stands on identically the same grounds with, his right of property in material things; that no distinction, of principle, exists between the two cases".

Writer Ayn Rand argued in her book Capitalism: The Unknown Ideal that the protection of intellectual property is essentially a moral issue. The belief is that the human mind itself is the source of wealth and survival and that all property at its base is intellectual property. To violate intellectual property is therefore no different morally than violating other property rights which compromises the very processes of survival and therefore constitutes an immoral act.

See also

• Anti-copyright notice
• Copyright abolition
• Criticism of intellectual property
• Criticism of patents
• Copyfraud
• Fair dealing
• Free culture movement
• Freedom of information
• Good Copy Bad Copy
• Information wants to be free
• Missionary Church of Kopimism
• New Zealand Internet Blackout
• Operation Payback
• Piratbyrån
• Warez
• Philosophy of copyright#Justifications for copyright

External links

• Abandoning Copyright: A Blessing for Artists, Art, and Society – Opinion by Professor Joost Smiers
• Anti-Copyright Resources
• Gnomunism – Utopia of Anti-copyright applied to all types of data that can be copied
• The Surprising History of Copyright and The Promise of a Post-Copyright World by Karl Fogel of QuestionCopyright.org.
• Unlicense.org – The Unlicense is a template for disclaiming copyright interest in software.
• The 18th Century Overture – Copyright in historical perspective
• Culture vs. Copyright – ebook by Anatoly Volynets. The book is composed of dialogues of first graders and their teacher contemplations on cultural, psychological, economical and other aspects of "Intellectual Property."