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: Moral Panics and the Copyright Wars

Bill: It's the "Why" Not the "If"

By William Patry, Esq

Ben, I never claimed the debates over copyright as property were recent; to the contrary, that's why I quoted Birrell's lecture from 1898. I could just as easily gone back to the Battle of the Booksellers in the 18th century which took place when the term of protection for pre-existing works granted under the Statute of Anne expired, and booksellers argued that copyright, as an alleged natural right, was perpetual. They lost that argument. My posts have been on a different question altogether: why is the assertion of copyright as a property right is made, over and over again. Again, Birrell gives the answer (in addition to my previous quote from him). If we call copyright not property in its ancient sense of belonging to the most sacred of families and existing before the Social Contract, but rather as a government privilege," then its term of enjoyment could and would be measured, limited, restricted, according to the wording of . . . the Act of the Legislature or other document which created it."

To me, the debates about copyright as property are always political, not historical; they are always efforts to influence the present and the future, an effort to get the legislature or the courts to reset the boundaries, as you once put it. That is why Jack Valenti insisted that the debate about home taping be decided by giving motion picture companies the same rights "as all other forms of property." And because efforts to reset the boundaries are perpetual, the political use of the property description is ongoing too. So let's just admit that much and admit that calling copyright property is merely a rhetorical tool.

I want to deny, clearly, your statement that "One theme I take from your posts, often left implicit, is that there was once a Golden Age of Copyright, when things were properly balanced, and use of terms like "property" and "piracy" didn't distort the discourse in favor of copyright owners." Not true. There has never been a Golden Age of Copyright, and sometimes this meant authors got the short end of the stick too: rights that should have been granted but weren't (like the translation right, jukebox performances, and performances by cable TV under the 1909 Act); compulsory license fees such as the mechanical rate for nondramatic musical works that was set in the 1909 Act, but not adjusted until 1978. Discourse was distorted from the inception of modern copyright, in the efforts to the London Stationers' Company at the end of the 17th century up to passage of the Statute of Anne, in an effort to hang on to their previous monopoly stranglehold over authors and the public. It was distorted again in the aforementioned Battle of the Booksellers, and the distortion continues today. That's the main reason I wrote Moral Panics and the Copyright Wars: to show how such distortion occurs and why.

I do think copyright was far more effective in the past, because of the existence of formalities like renewal and a much shorter term. We are now in an age where we have thrown overboard even the pretense of crafting laws so that they provide, empirically, a necessary incentive, and here the use of copyright as property is used to justify throwing overboard any such need: as property, copyright needs no justification, no means testing: property is its own jusitification. But the battles over the scope of protection have existed from the beginning of copyright and will remain until its death, and in those battles, language is too often a weapon and not a path to understanding.

Full post as published by Moral Panics and the Copyright Wars on August 26, 2009 (boomark / email).