Anything But a Right

2007-05-22

Certain sectors of the Internet are all a-twitter about Mark Helprin's recent essay in favor of perpetual copyright. Much sound and fury has ensued, but a great proportion of it signifies nothing because it does not strike at the root of the argument that Helprin and his ilk make.

And striking at the root means recognizing this: that copyright is not a right.

There is no right to forcibly prevent others from making copies of texts, maps, music, photographs, movies, or any other creative product. There is a government-granted privilege to do so (enforced by the government's police power, which ultimately means the power of a gun), but there is no natural, human right to do so.

It is important to be careful about the language we use. If we accept the terminology that copyright is a right, then most people are going to associate it with the Bill of Rights, with the rights to life, liberty, and the pursuit of happiness, with the rights of man, with human rights, and with all manner of wonderful, positive, humanistic ideas about individual dignity and respectful interaction in a modern, civilized society.

But copyright is about none of those things. Instead, it is at root a government-granted and government-enforced monopoly that was originally created to protect the market access of printers' guilds and publishing companies, and that has been continually extended to cover music, motion pictures, still photography, and just about everything else under the sun. It is an unnatural privilege that has been wrested from the powers that be. It is not now and never has been a natural, human right.

We are up against a deep-seated, long-lived, deliberate twisting of moral and legal concepts -- a misuse and misdirection of our innate respect for individual rights, human dignity, and personal creativity -- a package deal of epic proportions claiming that a coercive monopoly and artificial privilege is a natural, human right. To grace this phenomenon with the noble word "right" was a stroke of genius by those who foisted it upon us in the first place. But I think that those of us who are concerned about perpetual copyright weaken our cause by continuing to grant that copyright is a right at all.

Once we recognize that copyright is in fact a government-granted privilege restricting market access to a single publisher (typically not the creator but instead an agent of the creator who brings a creative product to market), we can have a civil discussion about whether it is good public policy to grant such privileges, and for how long. But as long as that privilege is wrapped in the timeless, universalistic, moral language of rights rather than the temporal, consensus-driven, political language of privileges, we will never make progress in reforming the laws that govern publication of creative products.

(Such products are not "intellectual property", either. But that's a topic for another post...)


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