The Origins and Intentions of Copyright

In a victory for media Goliaths, the Supreme Court recently ruled that TV-streaming service Aereo “perform[ed] … copyrighted works publicly” and therefore violated copyright law. The ghost of Grokster haunts us. Napster rolls in its grave. Copyright’s muscular hands have once again strangled innovation.

What is the purpose of copyright law? Conventional wisdom asserts that it protects the rights of authors, spurs creativity, fights plagiarism, and benefits the public as a whole. The Aereodecision, however, clearly benefits big media without advancing any of copyright’s ostensible aims. A look into the origins and intentions of copyright will demonstrate that this is neither a fluke nor a misunderstanding.

The roots of copyright lie in the soil of state-granted privilege. Invented in 1450, the Gutenberg printing press empowered writers throughout the Western world. Authors rejoiced, as their works could now be disseminated as never before. That included potentially seditious or sacrilegious works, much to the chagrin of the State.

To combat the threat, governments cozied up with publishing houses. In 1556 in England, the stationers’ guild became royally chartered as the London Company of Stationers. Along with the charter came a quid pro quo agreement. The company was entrusted with the obligation of “seizing, taking, burning … books or things … contrary to the form of any statute, act, or proclamation.” In exchange, it enjoyed an exclusive monopoly over the printing of all materials — old and new — throughout the kingdom.

Initially organized under the Roman Catholic rule of Queen Mary I, the Stationers Company spent much of its time censoring Protestant works. Upon Mary’s death and the crowning of Elizabeth, religious affiliations flip-flopped. The whimsical nature of the monarchy didn’t bother the Stationers, however. Both the company and the crown reaped the benefits of their insidious arrangement for decades. As University of Georgia law professor L. Ray Patterson puts it, “The power to burn offending books was a benefit to the sovereign (a weapon against unlawful publications), and a boon to the stationers (a weapon against competition).”

When Parliament became more liberal, it allowed the Stationers’ monopolistic privilege to expire. As a result, the Stationers became quite worried. No longer would they enjoy an obscene economic advantage.

Censorship to the point of book burning was not a high priority for the British government. Parliament ignored the Stationers’ initial pleas for statutory protection on the grounds of censorship.

The Stationers recognized that authors needed a publishing company. Dissemination of a work to any degree required a printing press, ancillary equipment, and substantial labor hours. The vast majority of individuals lacked the immense capital required to produce salable copies. With this in mind, the Stationers concocted the argument that authors should own the words and expressions they create.

The Stationers understood that authors eager for dissemination would sell their new property to publishers. Even so, it seemed like a liberal argument. Indeed, as Ludwig von Mises once wrote, “The program of liberalism, therefore, if condensed into a single word, would have to read: property….” Parliament accepted the Stationers’ new argument, and the first Western copyright law soon followed.

Patterson recounts what happened next: “Parliament eventually responded to the plea for an author’s copyright with the Statute of Anne in 1710. The characterization of the statutory copyright as an author’s copyright, however, is one of the great canards of history.”

Whom was the Statute of Anne, the first of its kind, intended to protect? As with any law, looking to whoever was lobbying for its passage provides the answer. In the case of copyright, the lobbyists were publishers, not authors. After all, why would authors seek to prevent the proliferation of their works?

From the outset, publishers sought to reinforce their existing privilege and deepen their pockets. The state provided the most effective means of doing so. In a way, copyright law subsidizes publishers by artificially mitigating the risk of doing business. Elements of mercantilism also crept into early copyright laws. Attempting to create incentives for homeland production, laws often invalidated copyrights if a work was subsequently published in a foreign nation.

Scarcity

Note that copyright was not and is not about the economic and social well-being of authors. Nor is it about spurring innovation and creativity. Nor is it about plagiarism.

Plagiarism and copyright are distinct. While plagiarism entails the misattribution of another’s work to oneself, copyright deals with the reproduction of properly attributed materials. Plagiarism, in fact, had been viewed as morally wrong and socially unacceptable since the Middle Ages. For example, when an Italian composer named Bononcini plagiarized a madrigal, he was ostracized. His music career all but ended, and he died in poverty. Laurence Sterne, Samuel Taylor Coleridge, and Oscar Wilde were all accused of plagiarism.

Nor is copyright about property. Rather than protecting rights to existing property, copyright invents (or better yet, conjures) property. The State cannot grant, create, or augment property rights. The best it can do is prevent the violation and diminution of property rights (if it can even do that). Given the constraints of the physical world, property rights are de facto necessary for the peaceful allocation of scarce resources and the survival of mankind. As shown by John Locke, Murray Rothbard, Hans-Hermann Hoppe, and countless others, property exists as a natural consequence of scarcity.

Absent a system of exclusive control, conflict over the use of scarce resources is unavoidable. On the other hand, conflict over the use of nonscarce resources does not naturally occur. Property rights dissuade conflict over scarce resources, but actually promote conflict over nonscarce resources. Intellectual property and property rights in scarce goods cannot logically coexist. As libertarian legal theorist Stephan Kinsella writes,

[By] merely authoring an original expression of ideas, by merely thinking of and recording some original pattern of information, or by finding a new way to use his own property … the IP [intellectual-property] creator instantly, magically becomes a partial owner of others’ property. He has some say over how third parties can use their property. IP rights change the status quo by redistributing property from individuals of one class (tangible-property owners) to individuals of another (authors and inventors). Prima facie, therefore, IP law trespasses against or “takes” the property of tangible property owners, by transferring partial ownership to authors and inventors. It is this invasion and redistribution of property that must be justified in order for IP rights to be valid.

Thankfully, technology has thrown a wrench into the copyright racket. While the Supreme Court can temporarily suppress a particular innovation, it cannot silence a crescendo of freedom. With the advent of computers, the Internet, and peer-to-peer networks, authors no longer need publishers. Vanished are the up-front costs and capital investment that formerly precluded self-dissemination. The foundation on which copyright lies will soon collapse under its own weight.

This article originally appeared at the Future of Freedom Foundation.

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