You do not get an “A for effort” with copyright

In reac­tion to more claims that copy­right exists to pro­tect cre­ators because of the effort they’ve put into their work, Mike Masnick of Techdirt points us to a Supreme Court case that clearly says otherwise:

It may seem unfair that much of the fruit of the compiler’s labor may be used by oth­ers with­out com­pen­sa­tion. As Justice Brennan has cor­rectly observed, how­ever, this is not “some unfore­seen byprod­uct of a statu­tory scheme.” … It is, rather, “the essence of copy­right,” … and a con­sti­tu­tional require­ment. The pri­mary objec­tive of copy­right is not to reward the labor of authors, but “to pro­mote the Progress of Science and use­ful Arts.”

from Feist Publications v. Rural Telephone, 499 U.S. 340 (1991).

The his­tory of copy­right is com­plex, but in my research to the dis­putes before and after the Statute of Anne (also known as the “Act”) passed the British Parliament in 1710, copy­right — when it finally existed — was not “theft,” but “infringe­ment” of one sort or another, at least under the law. Still, there were argu­ments then on this that were quite sim­i­lar to the ones we have today, and claims of “piracy” of intel­lec­tual prop­erty have a long history.

Before the Act (but after the inven­tion of mov­able type), print­ers were granted exclu­sive — and often effec­tively per­pet­ual — monop­oly rights in England to con­trol reprint­ing and copy­ing of books. (There were no such laws that applied in the United States until much later. America was the source of many illicit, although not ille­gal, reprints of British works.)

The Act changed this, and put rights in the hands of authors for the first time (although print­ers could pur­chase the rights from them), but only for a lim­ited duration.

Printers nonethe­less tried to argue for a per­pet­ual copy­right, say­ing that common-law prece­dents from before the Act should take over once author’s rights expired. Instead of falling into the pub­lic domain, the rights should go to the printers.

While this was based on English com­mon law, it was also grounded in an idea that so-called “nat­ural law” put cre­ations of the mind on the same foot­ing as tan­gi­ble or real prop­erty, and thus that own­er­ship should be per­pet­ual. Much of this drew from the­o­ries like those of English philoso­pher John Locke that “sweat of the brow” cre­ated prop­erty rights. That is, by invest­ing effort — farm­ing, hunt­ing, man­u­fac­tur­ing — an indi­vid­ual thereby gained own­er­ship rights. This is the same philo­soph­i­cal strand that still emerges today in very sim­i­lar argu­ments, but that has been firmly rejected under U.S. law.

In England, the House of Lords rejected this argu­ment in Donaldson v. Beckett, 1 Eng. Rep. 837 (1774), hold­ing that the Act extin­guished even the pos­si­bil­ity of such a per­pet­ual copy­right (if it had even ever existed, which is still debated). The U.S. Supreme Court held sim­i­larly in its first copy­right case, Wheaton v. Peters, 33 U.S. 591 (1834), and has con­tin­ued to do so.

The goal of copy­right is not to reward cre­ators for their efforts. Copyright does not come into being because authors labor over their nov­els. Instead, the point is to cre­ate an incen­tive to cre­ate, while leav­ing open the even­tual pub­lic benefit:

The law was meant to pro­vide an incen­tive to authors, artists, and sci­en­tists to cre­ate orig­i­nal works by pro­vid­ing cre­ators with a monop­oly. At the same time, the monop­oly was lim­ited in order to stim­u­late cre­ativ­ity and the advance­ment of “sci­ence and the use­ful arts” through wide pub­lic access to works in the “pub­lic domain.”

via A History of Copyright in the United States from the Association of Research Libraries.

Although there is ongo­ing dis­agree­ment still if this is the way copy­right should func­tion, nonethe­less under the law as it now stands, invest­ing effort into a cre­ation does not cre­ate a prop­erty right akin to the rights in tan­gi­ble objects. However nat­ural and fair it may seem, reward­ing effort alone is nei­ther the goal nor the basis of copy­right law.