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

By Kristopher A. Nelson
in February 2010

700 words / 4 min.
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In reaction to claims that copyright exists to protect creators because of the effort they’ve put into their work, Techdirt points us to a Supreme Court case that clearly says otherwise. History and precedent back it up.

Please note that this post is from 2010. Evaluate with care and in light of later events.

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.