Computer Sweden, September 2nd 2005
The Misunderstood Idea of Copyright
One consequence of the World Wide Web revolution is that more people than ever must know about the rules for publication and copyright. Unfortunately, many misunderstandings flourish about how copyright works. Certain debaters say that the digital era drives copyright to the verge of collapse — and that this is good! Copyright is in most cases an obstacle, they claim. But many who say this have probably not entirely grasped the spirit of this right. I for one would say that copyright actually is congenial with the information age. Copyright legislation may need reform, but the principle that immaterial or intellectual property enjoys legal protection — as material property does — is necessary, I believe, in a time when more and more people get their earnings from various intellectual accomplishments. One aspect is that intellectual property is needed for a person to be able to sell his or her work. Otherwise, one can only sell one's time. Judging from today's debate, one might get the idea that copyright is about music, film and big media companies only. Copyright, however, concerns most creative areas: newspaper articles, novels, poems, maps, photographs, painting, sculpture, dramatic works, even private letters. And copyright is primarily a right for the author or originator of a work, not for publishing houses or record companies. But authors and musicians often transfer parts of their rights to media companies or copyright organizations through contracts. Here, I would suggest, lies the root of a lot of today's dissatisfaction with copyright: that individual creators (for example musicians) sign bad agreements because they are in an unequal negotiational situation with a too powerful other party (for example a record company). Of course, such inequality exists in society in general, also when it comes to material property, so it is not a flaw in copyright law itself. Piracy is historically not new. In the 16th century, many printers earned their entire living on pirate editions of Luther's writings. The economic loss was, however, something that Luther regarded as a minor problem. Distorted content was a worse evil, according to him: [...] these misers and thievish pirate printers handle our work faithlessly. Because in their hunger for money they do not worry themselves about whether one of their pirated texts is correct or erroneous. Often have I had to experience that a pirated text is so incorrect that in several places I could not recognize my own work [...] [1] In Luther's time there only existed licenses for printers, no copyright for the author. In the copyright law of our time, there is, however, protection against distortion (also when legitimate publishers distort), which is included in the so-called moral part of copyright. In today's digital world, where e.g. texts and pictures so easily may be altered, precisely this protection for the integrity of a work is very important.
The moral rights also stipulate that the originator of a work must be stated by name when the work is published or if it is quoted. For scientific development it is essential that quotations in e.g. dissertations and textbooks are correct. One must be able to see who said what, otherwise knowledge will gradually degenerate, as when a message is passed on during a game of Chinese whispers. Even radical people who say that they give their writings to the world and do not care about how these are used, usually become rather angry if their texts turn up in misrepresented form, but still have their name under. But in such cases, copyright is a protection.
It was in England that the world's first copyright law came about in 1710 (the Swedes got theirs a hundred years later). The law was not written primarily out of concern for the authors — to a large extent it was the consequence of the competition between London's book publishers and pirate printers on the English countryside. The publishers needed a constant party to draw contracts with — and this was the author. Daniel Defoe had propagated for such a law and linked it with questions of freedom of press and censorship: 'Twould be unaccountably severe, to make a Man answerable for the Miscarriages of a thing which he shall not reap the benefit of if well perform'd [...][2] The debate about pirate printing was lively after Luther's time — also philosophers such as Johann Gottlieb Fichte or Immanuel Kant wrote treatises on the subject. Fichte came up with the thought that one should distinguish expression from idea. Only the expression should be protected; the idea should be free to imitate. However, in Fichte's day there were also people who — like today — defended piracy. The Hamburg doctor and scientist Johann Albert Heinrich Reimarus, to name one, wrote in 1791: Which rights vis-à-vis others could an author of a text transfer to the publisher by means of a contract? Hardly more than he owns himself; and he has no sole right to thoughts [...]. [3] There are, however, many who consider precisely the products of thought as having a unique position. During the French revolution Jean Le Chapelier summarized a debate in the French National assembly: The most sacred, most personal of all types of property is the author's own fruit of thought [...] therefore it is most fair that those men who cultivate the fields of thought may enjoy some result of their work.[4] Those opposing copyright often say that nobody creates something really original; everybody is influenced by precursors. They speak with disdain about "romanticizing the genius". This line of arguing, however, brings to mind the so-called Law of Jante (after Norwegian writer Aksel Sandemose):[5] What makes you think that what you write is so brilliant that it is worth protecting? One important ingenuity is that copyright is very equal, as the lawyers Samuel Warren and Louis Brandeis demonstrated in a well-known article in 1890 ("The Right to Privacy"): The same protection is accorded to a casual letter or an entry in a diary and to the most valuable poem or essay, to a botch or daub and to a masterpiece.[6] Many critics of copyright have for some reason got the impression that creative works are protected for all eternity. But the protection lasts 70 years after the originator's death. In my view it should not get any longer than that, here I can agree with certain critics. On the other hand, 70 years is a relatively short period of time if you compare with how long material property may be inherited. The explanation is, of course, that material property seldom has the same kind of role in society's knowledge exchange. Neither should one forget that surviving relatives could act as good advocates for an artist who has yet not been discovered at the time of his/her death. "Everything is prohibited", some people claim. But copyright law has a number of exceptions. For instance, anyone has the right to quote from a published work, and one is permitted to make copies for private use, educational purposes, etc. On the other hand, one can say that "everything is prohibited" before publication. Up till then, the author has an unrestricted right to decide if and when the work in question shall be published. It is prohibited for others to even quote from a non-published work. In this regulation, we can see a link to freedom of speech. Of course, a person shouldn't be forced to express something. And a person's expressions should not be distorted either. Here, the moral rights part of copyright comes in. Some debaters mean that what is most important to artists and authors is to get their works spread rather than having full control. This thought is not new. The British lawyer Augustine Birell wrote this in 1899: Was there ever an author who would not sooner publish and starve than not publish at all? This proves that the author's rights are not based on a desire to exclusive possession of 'that which he has written'.[7] Certainly, creative people in general wish to reach out. But that does not imply that those who work professionally with some kind of cultural creations would not need to be able to make a living from their work. As blues singer Peps Persson put it in an interview in Swedish daily Dagens Nyheter recently: "I have to live. If my music shall be free of charge, everything else must be free too."[8] Without copyright, one cannot even give away something free of charge, if one wants it always to be available for free. Suppose I publish a novel on the web, and I want it to be free for all. The novel turns out to be a success and someone takes my text, prints it, and sells it and makes good earnings on it. This is obviously against my will, but what could I do about it without copyright? When new media emerge, opposing stakeholders often start a tug-of-war in order to alter the balance that has earlier been established in legislation. Today's conflicts about the Internet makes one think of the 1980's debate about video cassettes as well as the quarrel about rolls for player pianos at the beginning of the 20th century. In 1905 composers' representatives wrote a bill to the American congress proposing control over any "appliance especially adapted" to mechanically record musical compositions.[9] Sounds familiar, doesn't it? Certainly, legislation must be modernized from time to time. In the 19th century, a theatre director could legally copy a competitor's play, if it had yet not been printed, provided he sat in the audience and was sufficiently quick with his pen. Eventually, however, also performances were granted protection by copyright. In 1996 lobbyists tried to get the Berne convention changed so that the Web would have become impossible. Every copy of an image or a text that came about during normal transfer on the net, no matter how short-lived it was, would constitute "reproduction", which somebody would have to pay for. Luckily, this was stopped.[10] Obviously, it is easy to get seized with panic, when confronted with new technology. The discussion about file sharing is another example of this. The anti-piracy organizations in both USA and Sweden seem to become increasingly militant. Let's hope that they won't accomplish new laws like the French one from 1777, which granted printers the right to approach the nearest policeman and, without a court order, take him to book or print shops for inspection, if he suspected that pirate prints might be stored there.[11] As we have seen, copyright deals to a large extent with the integrity of both the work and its author. Therefore, it would be especially unfortunate if one sacrificed personal integrity or privacy in attempting to uphold such a law. Copyright is a delicate act of balancing the author's or originator's need to get some revenue back for his or her efforts against the general public's need to be able to utilize the work in question in a reasonable and useful way. The legislators have been highly aware of this difficult weighing up, ever since the 18th century. There is, however, reason to keep an eye on this balance so that it does not fall over in either direction. is a Swedish journalist and writer. He is currently working on a book about the history of copyright. See www.copyrighthistory.com
Please note: Text marked in red was deleted in the printed version. Neither were the portrait of Defoe nor Luther's emblem included in the print version. Footnotes (not included in the print version):
1. Widmann, H., "Geschichte des Buchhandels vom Altertum bis zur Gegenwart",
Wiesbaden, 1975, p 70-71. |
