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The Copyright Monopoly Is A Legal Featherweight Compared To Property Rights

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Copyright Monopoly

Copyright Monopoly

In our series of misconceptions about the copyright monopoly, some people defending the monopoly keep asserting that it carries the same legal weight as property rights. This is not so much misguided, as it is merely factually wrong from every angle.

When faced with the fact that the copyright monopoly is a limitation of property rights, some defenders of the monopoly claim that property rights and the copyright monopoly “carry equal legal weight anyway”, in an attempt to downplay that argument’s importance in the debate about the copyright monopoly’s legitimacy. Their claim calls for fact checking and further scrutiny.

When comparing the copyright monopoly to the property rights that it limits, we can go to the constitution of many countries to compare their respective weights. Starting with the US Constitution, we can readily observe that property rights are a long-running tradition of the British Common Law, and find several passages that limit Congress’ ability to curtail those property rights by law.

One of the most-quoted of these passages may be in the US Bill of Rights, in the Fifth Amendment: “…nor shall private property be taken for public use, without just compensation”.

In contrast to safeguarding property rights, the US Constitution does not require the Congress to have any copyright monopoly at all on the law books, but merely grants Congress the power to enact such a monopoly (“exclusive rights”) if it finds that doing so promotes the development of culture and knowledge.

We find this passage in Chapter 8 of the US Constitution: “[Congress has the right] …to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The right to create the monopoly – but not the obligation.

So, property rights are constitutionally safeguarded, whereas the copyright monopoly may exist as a law or it may not, as Congress desires from day to day. That is obviously not the same legal weight. The copyright monopoly is a featherweight by comparison.

Other countries show the same pattern. Let’s look at Sweden, where property rights are similarly protected in the constitution.

In Sweden’s Regeringsformen constitution, chapter 2 para 15, we find that “…the property of everyone shall be safe against expropriation to public or private interests, except when needed to accommodate urgent public interests”, in which case full compensation blah blah. Pretty much a mirror image of the US Bill of Rights. And what do we find about the copyright monopoly? It is indeed in the constitution, in the very next paragraph:

Chapter 2, para 16: “Authors, photographers, and artists have rights to their works that are determined by ordinary law” [as decided by Parliament].

Thus, we observe the same difference in legal weight here – the property rights are heavily safeguarded in the constitution, with no rights for Parliament to jeopardize them, whereas the copyright monopoly can be abolished, changed radically, or turned into ice cream tomorrow if the Swedish Parliament so desires.

That is obviously not the same legal weight. The copyright monopoly is a featherweight by comparison.

While the copyright industry has been trying to portray the copyright monopoly as “property” in order to legitimize their lucrative monopoly, the copyright monopoly is a governmentally-sanctioned private monopoly that stands in direct opposition to property rights. And as this article has shown, the monopoly is nowhere near the legal weight of the property rights that it limits.

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About The Author: Rick Falkvinge

Rick is the founder of the first Pirate Party and is a political evangelist, traveling around Europe and the world to talk and write about ideas of a sensible information policy. He has a tech entrepreneur background and loves whisky.

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28

  1. 1

    Indeed. Moreover, see which way the US Constitution goes. The Congress doesn’t have the right to create the copy monopoly just because they feel like that. They have the right to promote the Progress of Science and useful Arts by the time limited monopolies. So, if the monopolies don’t prove to promote the Progress of Science and useful Arts, the Congress is actually obliged to shorten or abolish them. Needless to say that the Congress keeps failing on doing so.

  2. 2

    It’s nice to see that Regeringsformen doesn’t say that middlemen have any rights. Only authors have a constitutional right, which the copyright industry takes away from them.

  3. 3

    It’s the same in the german constitution. Art. 14 & 15 of the Grundgesetz (base law) handle property rights, basically assuring that property and heritage are secured, and no property can be taken away without compensation. (It also features the strange german rule that “property commits. Its use needs serve the public as well.”)

    Copyright is nowhere even mentioned in the constitution.

    • 3.1

      For the sake of completion, I need to correct this, as Art. 73 Nr. 9 of the constitution says that the federal government has the right to pass laws regarding (among other things) copyright. This is to be understood as a regulation of authorities (who gets to do what, as otherwise the individual german countries could pass their own laws) and not as a constitutional right on copyright.

    • 3.2
      Anonymous

      “Eigentum verpflichtet. Sein Gebrauch soll zugleich dem Wohle der Allgemeinheit dienen.”

      I would translate this as “Property creates an obligation. Its use shall serve the general well-being as well.”

      How strange, to find this in a constitution. It is also fairly crisply put in the original. A far cry from the EU constitution, which I have heard runs to thousands or even millions of pages.

  4. 4
    Anonymous

    ‘The Copyright Monopoly is a legal featherweight compared to Property Rights’.

    and that it why the US entertainment industries are trying relentlessly to get their stuff upgraded so as to be at least on par! now imagine what it will be like when they achieve that, and achieve it they will because there isn’t a single country that is doing a damn thing to stop them! every government is bending over and grabbing ankles just to please those industries, not least of all for the amount of ‘campaign contributions’ that are made, but also because the governments can use those industries as the smoke screen to hide the constant surveillance laws they want to bring in to keep track of everywhere people go, what they say to whom and when and to reduce as many freedoms and privacy as possible

  5. 5

    Copyright and patents are not mentioned in the Danish constitution at all.

      • 5.1.1
        Neverhood

        Yes very much so. § 73 in the danish constitution is devoted to property rights:

        “Property shall be inviolable. No one can be ordered to surrender his property except where the public interest requires it. It can only be done by law and against full compensation.”

        • Johan Tjäder

          Denmark have a very special construction regarding the freedom of speech. § 77 of the constitution provides:

          “Anyone is entitled to in print, writing and speech to publish his or hers thoughts, yet under responsibility to the courts. Censorship and other preventive measures can never again be introduced.”

          The phrase “yet under responsibility to the courts (“under ansvar for domstolene”) is a very open phrase, which allows danish ordinary law to curtail freedom of speech. While it is not unheard of outlawing slander and other forms of defamations, which is obviously hurting other people – the limitations of free speech induced by the copyright act, seems to be enforcable by this provision and this provision alone.

          I think that makes danish copyright legislation vunerable to court challenge. As the view of the benefit of copyright changes, it must get harder and harder to defend this curtailment of free speech without an explicit permission in the constitution. And as a referendum is necessary in order to amend the constitution, it’s not likely a copyright provision would make it in there.

  6. 6
    Piotr Witold Von Fedorowski

    Thank you for this important post. Unfortunately, you fall into a trap of talking about “rights” and “constitutions”, which weakens any argument.

    The concept of rights requires some sort of a guarantee in form of a higher being, such as a God or a State.

    Whatever your spiritual beliefs, it’s probably safe to say that no deity is guaranteeing you anything within the physical reality.

    As to the State, the only thing that this random group of people who call themselves that name can guarantee is that they will try to remain in power. All else is secondary – including guarantees made to you on pieces of paper.

    No. The validity of the concept of property and ownership is not guaranteed and is merely a result of an intersubjective consensus within the relevant society.

    For example, the current consensus is such, that I don’t even own my body – my relevant society will throw me into a cage for non violently ingesting a certain plant or a chemical.
    Moreover, I can’t even say I own ANYTHING, since elements of the State can show up at any time and claim any of my property at any amount and society won’t allow me the privilege of self defense (essentially granting the State a “right” to murder me if I resist).

    Now that we have the illusory concept of rights and law out of the way: why is it that sometimes your society will respect your ownership claims to certain property?

    Physical objects bear an inherent conflict within themselves because of their physical properties: they can only be made up of specific atoms and occupy specific space and so cannot be owned multiple times at once. Avoiding the conflict that stems from those properties is advantageous from a pure game theory perspective. Life’s much easier if we don’t have to fight each other every second of every day. That’s where the idea of property and ownership come in. A community that didn’t respect SOME form of property consensus (even if it’s just “everything belongs to the high priest!”) would not get very far.

    Legitimate property is therefore a tool for reducing conflict inherent in society. Things that are (in practical terms) abundant, like a herd of bison or a piece of publicly available knowledge, are not a source of conflict, therefore it makes no sense to call it anyone’s property. “Intellectual property” in fact leads to escalation of conflict, since it requires violent enforcement of unprovable claims against parts of established and otherwise uncontested property.

    • 6.1
      Neverhood

      I am sure that there is a Philosophy class somewhere that will find your points fascinating. In the mean time, this has nothing to do with copyright vs. property right.

      Property rights are (in most civilized countries) guaranteed by the constitution with specific caveats. Weather or not you like these caveats are irrelevant and they do not diminish the fact that property right is a right guaranteed by most constitutions, and that copyright is not.

    • 6.2

      This is a quite esoteric argument for most people, as laws (upheld by a state or equivalent) are an axiomatic construction to most people. Still, I will be discussing property rights and the state’s role in enshrining/upholding them in the last part in this series.

      Cheers,
      Rick

    • 6.3
      Anonymous

      You’re disturbed that the state can show up and take your property at any time, murdering you in your sleep if you put up any resistance.

      You’re in need of rights then, as much as any of us ! Fortunately there is a (broad, vague) social consensus in this direction, as you say, particularly along the Western trail, but actually everywhere to some extent. Lean back and enjoy it, when it works, whatever Power you might attribute it to, and don’t call attention to the proscenium too much, for by doing so you hardly improve the play.

  7. 7
    blah blah blah

    Despite agreeing with you in many things, this is one i cant agree.
    You havent presented a model that can substitute the current one. Until then, u can bring million arguments to put the copyright down…. wont be no good !!
    You still havent explained to us how all the small labels, small artists are gonna live…. Sell t-shirts ?!?!( yeah the recurring “insult” to your attacks on copyright lol)
    Show ne a viable substitute model/solution and maybe then people will take you seriously on this subject !! Until then, you have nowt !!

    • 7.1
      Techanon

      >”how all the small labels, small artists are gonna live”

      Exactly like how they are living right now, maybe?
      Anyways, when did it become our job to fix your business model?

    • 7.2

      First, this article is an observation that the copyright monopoly is a legal featherweight compared to property rights. It has absolutely nothing to do with how somebody is supposed to make money.

      Second, I do not have to tell anybody how to make money, nor is it my role to do so. More importantly, telling anybody how to make money is absolutely not necessary to validate any of the criticism against the copyright monopoly and its disastrous effects on society. If laws change tomorrow, which I argue they should, it is up to entrepreneurs to figure out new ways to make money if they can’t keep making money the same way. This happens daily in several fields as laws and regulations change, and there is absolutely no reason that the copyright monopoly should be an exception.

      Nobody ever owed anybody else a profit.

      That said, there are thousands of companies that make a profit without relying on the copyright monopoly. Those obsolete middlemen who rely on the monopoly structure, and can’t read the writing on the wall right in front of them and see successful entrepreneurship – those people need to stop demanding answers to their own problems, and understand that their problems are just that – theirs.

      Cheers,
      Rick

      • 7.2.1
        Caleb

        This. I get very annoyed when people insist that I put a structure in place to continue to make jobs for an obsolete industry. I’m reminded of your previous posts regarding the Red Flag Law and the history of the refrigerator/ice man. Happy new year, Rick. Keep the articles coming, and let the pirate flag fly!

    • 7.3
      Scary Devil Monastery

      “You havent presented a model that can substitute the current one. Until then, u can bring million arguments to put the copyright down…. wont be no good !!”

      Would you please care to list the models which can substitute for the following businesses?

      Blacksmithing.
      Coach-driving.
      Purveyors of cooling ice.
      Hand calligraphers.
      seamstresses.

      Now, every time through history – EVERY time – that technology rendered one type of business model unenforceable or irrelevant that model went. End of story.

      Up until then all you are really saying is that in order for small labels and bands to survive, the relevant enforcement must exist. That “relevant enforcement” requires the total and complete annihilation of privacy rights, property rights, and possibly even the right to even use the internet – for everyone.

      That price is too high, because if you think people will stop sending one another copies of media while it is possible to do so at all, you are mistaken.

      At some time you will have to make a choice. Whether your business model is “important enough” to you to authorize the state spending as much money or more catching filesharers as they do catching real criminals, or to subject people whose only crime was making a copy to the sort of punishment you’d render to a sex offender.

      When that time comes, be sure to make the right decision. Raging mobs and revolutions rarely care that you were in it only to save your right to sell a CD.

  8. 8
    Pedro

    Just came here to wish you a good entrance in 2013 as best as possible, Rick. May the next year be as best as possible for the many battles we all are going to face! :)

  9. 9
    printersMate

    In the long history of literature, copying was a significant cost to the person or organisation requiring a copy as they usually had to provide the parchment and either the time or a scribe to carry out the copying. As a result of this, most copying of books was carried out by the church, and the noble who could afford this activity.
    When the printing press arrived in Europe, it not only reduced the price of books, but also mad them available to many more people. This was a threat to the established order of the nobles and the church, and this resulted in a battle to control knowledge leading to control of printing. This control in England was administered by The Stationers company and over most of the content by the church via Imprimatur.
    Both these were a means of censoring the information that was printed by the State and the Church, and were a means of controlling what authors were allowed to publish.
    In England, after the Censoring function of the Stationers company had been abolished, the Stationers came up with the Idea of copyright, so that the could maintain their control over the allocation of titles to printers. Note the sleight of hand in copyright, grant it automatically to an author, who has to transfer the right to the stationers to get the book published. This maintained their control over printing.
    The natural right of an Author is that of deciding whether or not to publish a work. By long tradition, they also have a right of attribution, that is being named as the author of a work. Modern copyright is a recent invention which was created for the convenience and regulation of the publishing industry, rather than the right of an Author to control the actual copying of their work.
    It is worth noting, that as far as I am able to tell, performance rights in music are an invention of the recording industry, and that under the original copyright rules, only sheet music was protectable. Again copyright is associated with the publishers, in this case record labels, rather than the creators of works.
    Given the damage it is doing to society as the publishers try to maintain their control over copying, intrusive monitoring and arbitrary take down powers, it should be abolished, or drastically weakened.

  10. [...] the copyright monopoly as such – which is ordinary law in European states – was just defined as taking a back seat to the constitutional right to share [...]

  11. [...] lo tanto, el monopolio del copyright como tal – el cual es ley ordinaria en los estados europeos – fue definido con un papel secundario frente al derecho constitucional [...]

  12. [...] the copyright monopoly as such – which is ordinary law in European states – was just defined as taking a back seat to the constitutional right to share [...]

  13. [...] the copyright monopoly as such – which is ordinary law in European states – was just defined as taking a back seat to the constitutional right to share [...]

  14. [...] to property rights, being a governmentally-granted private monopoly. We’ve looked at common objections to this observation from those who would attempt to defend the copyright monopoly as [...]

  15. [...] the copyright monopoly as such – which is ordinary law in European states – was just defined as taking a back seat to the constitutional right to [...]

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Rick is the founder of the first Pirate Party and is a political evangelist, traveling around Europe and the world to talk and write about ideas of a sensible information policy. He has a tech entrepreneur background and loves whisky.

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