I was recently discussing with a colleague on Tazzu the new allies the Copyfight seems to have found:
Tazzu Discussion Thread: “The Forces of CopyRightness gain another ally”
Ars Technica: The Privacy Commissioner is not a big fan of the new Canadian Copyright Bill
CBC News: “Industry coalition joins voices against harsh copyright reform”
I’ll quote what I wrote on Tazzu and go from there:
After all, copyfight isn’t between industry and consumers; it’s between content-creation coalitions and an emerging coalition of consumers for end-use and consumers for innovation… Think about that for a moment. A content-consumption coalition of those who consume for both end-use and for further development.
This is the clearest indication yet that the driving force behind copyright law – and certainly behind copyright reform – is not a natural-law philosophy of author’s rights, but a positive-law philosophy on economics, innovation, and balance between creators and consumers.
Here I run into a bit of a personal dilemma. One of the aspects of the Canadian Copyright Act that has impressed me in comparison to its U.S. counterpart has been its upholding of the inalienability of moral rights, or droits d’auteur. They can be waived, but not sold. The artist is presumed to have certain natural rights with respect to her work. On the other hand, I have vociferously defended the U.S. Constitution’s philosophy on intellectual property – the creation of limited monopoly by the artifice of law for the purpose of the progress of “Useful Arts and Sciences”.
How do I reconcile my trumpeting of the artifice of positive law in the U.S. with my trumpeting of the recognition of natural law in Canada? Let’s delve into it a bit, and see if the two can live happily together in the wake of this emergent coalition of users. Perhaps the answer lies in the strength of users’ rights… We’ll see.
From the perspective of U.S. law, at its constitutional roots, we have a balance enshrined between creators and consumers. We grant a limited monopoly on what should be free in order to create an incentive to further create and innovate. We start with the public domain in which ideas and expressions naturally reside, and by the artifice of law carve out a small chunk to allow the creators to profit for a little while; in an idealistic capitalist community (the U.S.), this is the ideal way to drive innovation.
The core of the U.S. philosophy on intellectual property, ironically (when you consider recent draconian measures like the DMCA), is a firm belief in the public domain and the non-propertization of ideas (and expressions). This was expressed wonderfully by Senator Patrick Leahy when Congress and the Senate were creating early versions of the DMCA; Sen. Leahy’s version was markedly different in its treatment of Fair Use Exceptions and the Public Domain from the end product.
The Canadian and European perspective on moral rights is one rooted in natural law, and one very old indeed. There exists evidence of Talmudic scholarship on the subject of the natural rights of authors to accreditation and against defamation.
So is copyright natural, inalienable, permanent, et cetera, or is it positive, artificial, and merely a temporary capitalist incentive? And how does this go along with an emergent coalition of users fighting for fair copyright?
It is both. The rights of the author to certain basic rights such as those in Article 6bis of the Berne Convention are natural and inalienable, and fully compatible with positive intellectual property when one recognizes that economic rights are severable from moral rights. Moral rights are not property rights, though they are bundled as such in moral rights jurisdictions. In the United States, they are covered by tort laws, such as defamation. I don’t think that that coverage is sufficient, and I do not defend the American model for protecting droits d’auteur. But their separation makes sense.
In fact, what we are seeing with this emergent coalition between industry, privacy advocacy, and end-user consumers is a demand for that severability. The only natural and enduring aspect of copyright is in moral rights, and to drag that durability and presumption of naturalness into economic rights is to subjugate the entire public domain – the natural primordial miasma of ideas and expressions – to the economic prowess of creators’ coalitions. The coalition demands recognition of the public domain – of the paradigm that copyright is carved from users’ rights, and not the other way around.
The potential to swing the pendulum towards the content users and their rights, whether for end-use consumption or for industrial innovation, is a bright light for those of us who’ve been watching the usurpation of government legislative power by corporations in the domain of intellectual property. To have corporations and at least one minister battling against the very noisy coalitions on the other side (such as the RIAA, MPAA, etc.) is a lungful of air so fresh I’d forgotten its taste.
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