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.

What does it mean to our culture that we have imposed the most draconian restrictions on the reuse of intellectual creations than at any other time?

1. We are the first generation to deny our own culture to ourselves.

2. No work created during your lifetime will, without conscious action by its creator, become available for you to build upon.

via The Public Domain in 2 Twitter sized bits.. | The Public Domain.

Mike Masnick at Techdirt adds to this:

For people who don’t recognize the importance of the public domain and the nature of creativity, perhaps this seems like no big deal. But if you look back through history, you realize what an incredibly big deal it is — and how immensely stifling this is on our culture. And then you realize this is all done under a law whose sole purpose is to “promote the progress” and you begin to wonder how this happened.

via Copyright Length And The Life Of Mickey Mouse | Techdirt.

The changes and restrictions of copyright are unprecedented. Yet our technological progress — and cultural output, at least — has grown exponentially over time, even as our IP restrictions have increased. Is there a correlation or connection?

I believe over-restrictive copyright hampers innovation, but I also believe it’s not a simple equation. It’s about balance, and I’m looking for evidence to find the “sweet spot” that balances the rights of creators with the utility to end-users.

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• What does it mean to be in the public domain? Thoughts about the AP licensing scheme. (inpropriapersona.com)

Economists Felix Oberholzer-Gee and Koleman Strumpf have just released a new Harvard Business School working paper called File Sharing and Copyright that raises some important points about file sharing, copyright, and the net benefits to society.

via Michael Geist — Harvard Study Finds Weaker Copyright Protection Has Benefited Society.

Mike Masnick of Techdirt adds:

To understand the key points made by the paper, you need to understand the purpose of copyright — something that many people are confused about. It’s always been about creating incentives to create new works. Copyright maximalists and defenders of strengthening copyright laws always suggest that without copyright, there would be much less creative output, because there would be much less incentive to create. History has shown that to be false. If you look back at the age when all creative output had to be registered to be covered by copyright, studies showed that only a very small fraction of content creators even bothered, because copyright wasn’t the incentive. It’s only now, when copyright is automatic, that people seem to think that copyright is somehow necessary.

via Yet Another Study Shows That Weaker Copyright Benefits Everyone | Techdirt.

There are many who disagree, but the study appears to raise interesting issues regarding the benefit to society of copyright protections. As Mike Masnick writes above, copyright is about balancing benefits (incentives to create with the benefits of distribution). Thus, the United States Constitution, in granting to Congress the power to regulate patents and copyrights, says that the point is to

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.

In other words, although we consider copyrights and patents to be property, it is property that functions differently than many conceptualize. It explicitly lasts “for limited times,” for example (although other forms of property also may be limited — law students learn early on that property is a “bundle of rights,” not some kind of absolute grant).

I am not convinced that eliminating copyright is the best approach, even if this study suggests that file sharing may actually benefit creators. Instead, I think perhaps a better balance of rights may be appropriate, and may even benefit creators (musicians, authors, etc.) over the current regime, which tends to benefit current owners of intellectual property (labels, publishers, etc.). But I remain open to exactly what that balance should look like, and studies like this help to provide evidence for which approaches might be better than others.