Hyde addresses the history of copyright, and demonstrates that the founding fathers were not at all fans of it. Rather, they understood that a cultural commons needed to be regulated and protected, much as an agricultural commons needs to be defended against enclosure. As such, any encroachment on the commons must be limited and temporary, and designed for the public good, not private gain.
Hyde defines some of the historical arguments for copyright protection:
One assumes that all creative men and women have a natural right to the fruits of their labor and that, where non-excludability makes it hard to claim those fruits, society should intervene. (If it takes me ten years to write my novel, it is right and proper for the law to help me earn my rewards.) Another answer assumes that creative work is a kind of extension into the world of the creator’s personality and that the work therefore deserves the same respect and protection that we accord to individuals. (My novel bears the stamp of my being; others should not be able to insult it, mutilate it, misattribute it, or use it to earn money without my permission.) Here the concern is not simply with just reward for effort spent but more broadly with questions of honor, respect, and reputation.
Both the labor theory and the moral rights theory, as these are called, focus on the individual creator. The third argument in support of otherwise “unnatural” exclusive rights does not ignore the individual but it begins, by contrast, with the needs of the community. If the group as a whole would benefit from a constant flow of useful and wonderful creations, and if an exclusive right would motivate creators to make these things, then why not offer it? After all, if public goods are common by nature, then their very nature is an impediment to their production (so long as producers need to earn a living).
This last point is an important one, and one in which the digital creation (in its infinite distribution) is most disruptive. It’s hard for information to be free when lunch isn’t.
In 1768, Ben Franklin published the first map of the Gulf Stream. Sailors had known about the Gulf Stream for some time, but most kept it a closely guarded secret; Franklin discovered a fisherman willing to divulge what he knew, and put that knowledge into printed form.
What Franklin does in this and other cases is to use “copper plate and letter printing” not so much to create new knowledge as to create public and durable knowledge. By the simple act of printing, he moves proprietary, secret, local, and potentially ephemeral information—something known to fisherman and whalers (and to whales, for that matter) but not to the majority of navigators, packet boat captains included—into the public sphere, so that it can widely “be of use” and so that it will not “die with the Discoverers.”
The first years of the printing press were similarly focused on durability: new writing was rare, but printers’ efficiency at releasing old, obscure texts prompted the renaissance, as well as a level of scientific advancement not seen in years past. Durable (or fixed) texts create a platform for knowledge and discovery that ephemeral texts cannot achieve.
Copyrights and patents were originally conceived of as monopolies; that is, they provided an exclusive control over a trade, and they did so at the mercy of the state:
The 1624 Statute of Monopolies also made one overt exception to its general prohibition: it allowed patents “of fourteen years or under” to be granted “to the first and true inventor” of “any manner of new manufacture.” Such was the first British patent law and its context make two things clear: patents, like copyrights, were understood to be a species of monopoly, and in allowing them Parliament was granting a privilege, not recognizing a right.
Nearly five hundred years later, it is common to refer to one’s copyright as a natural right; and that infringing upon it is akin to theft, as if the taking of your words is the same as the taking of your bread. But perhaps we would do well to recall that copyright is a special right, not an inalienable one. And with it comes a set of obligations:
Innovations like [the general public license] have come to be called “copyleft,” an unfortunate term because it falsely implies that measures of this sort have their place on the political spectrum. The “right” in copyright refers to a privilege secured by law and its correlative is “duty,” not “left.” The GPL imposes a copy-duty on its users; they have duties to the commons, the duties of encumbered and comic selves.
The use of the word “comic” here is in opposition to “tragic”; that is, a comic self is one who adapts to her surroundings, and succeeds (or fails) collectively with her fellow actors. In contrast, the tragic self proceeds along the thin rail of individualism, and pays no heed to those in his way. It is instructive to recall that while a comedy typically concludes with a wedding, a tragedy always ends in death.
It is right that the murder of many people be mourned and lamented.
Even the best weapon is an unhappy tool.
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