Rights precede laws

Crosbie Fitch argues that the concept of copyright is now out-dated

Image: CC-AT-SA Flickr: bobbigmac

In order to understand the conflict between the publishing industry’s 18th century privilege of copyright and the emancipating cultural liberty of the information age, we need to understand copyright’s history. But, more important than the history of copyright or the law that created it, we need to understand rights.

What is the most important thing to know about rights?

Rights precede law. Our rights are not created by law. Our rights are imbued in us by nature. We, the people, create law to recognise our rights, and create and empower a government to secure them.

What are our rights?

Rights are the vital powers of all human beings. We have rights to life, privacy, truth, and liberty. We have a right to life, to protect the health and integrity of our minds and bodies. We have a right to privacy, to exclude others from the objects we possess and spaces we inhabit. We have a right to truth, to guard against deceit. We have a right to liberty, to move and communicate freely.

How then did government create a ‘right’ to prohibit copies?

No people creates a government to abridge, annul, or derogate from their rights in the interests of a few - or in Orwellian NewSpeak, the greater good. However, a government is in a position to assume power beyond that provided to it by the people. It can assume power to derogate from the people's rights in order to privilege a minority. Indeed, these privileges, so called 'legal rights', are now so pervasive in society that we must qualify the rights we were born with as natural rights.

So, what is copyright?

What we call ‘copyright’ is an 18th century privilege. It was granted by Queen Anne in her statute of 1709 for the ulterior benefit of the crown and its Stationers' Company, so that the de facto printing monopolies established by the guild during its control of the press could become law. The Stationers’ Company resumed enjoyment of its lucrative monopolies and effective control of the press. The crown resumed its ability to quell sedition via indirect control of the consequently beholden press.

Why was this Statute of Anne wrong?

Privileges are unconstitutional, inegalitarian, and unjust. Paraphrasing from Thomas Paine's 'Rights of Man', the liberty and right to copy is, by nature, inherently in all the inhabitants, but the Statute of Anne, by annulling the right to copy in the majority, leaves the right, by exclusion, in the hands of a few - or, as we term them today, 'copyright holders'.

Consequently, copyright, as any privilege, is an instrument of injustice.

What is the consequence of granting copyright?

Copyright is now a cultural pollutant and has effectively created cultural gridlock. Today, individuals face jeopardy in any significant engagement with their own culture. Morever, copyright fools the very same people into believing they have a natural right to control the use of their work. Although we have privacy, the natural exclusive right to prevent others copying our work whilst it is in our possession, this does not provide us with the power to prevent others making further copies of what we give to them.

Such unnatural power is only provided by copyright, because that annuls everyone’s liberty and right to copy, leaving it in the hands of the copyright holder to restore by license. Even so, to prosecute the privilege, to detect and sue infringers, can be very expensive, and tends to require the wealth and economies of scale of a large copyright exploiting publisher.

But then why has copyright lasted so long?

In the 18th century the press could be controlled.

In the last couple of centuries, when printing presses were relatively few and far between, the state and publishers, via their crown granted privilege, could expect to police and control the press.

Why can’t copyright work today?

Today, the press is us, the people. Today, we are all authors, all publishers, all printers. We, the people, are the press. To control the press is to control the people – a people supposedly at liberty.

What is the current approach to making copyright work?

The people are being ‘educated’ to respect copyright through draconian enforcement – severe punishments of a few as a deterrent to the many.

2005: Jammie Thomas-Rasset, 28, mother of 4, shared 24 files. Found liable for damages of $1.9m.

2005: Joel Tenenbaum, 22, shared 31 files. Found liable for damages of $675,000.

2010: Emmanuel Nimley, 22, iPhoned 4 movies and shared them. Sentenced to 6 months’ jail.

2011: Anne Muir, 58, shared music collection. Sentenced to 3 years’ jail.

2011: Richard O’Dwyer, 23, linked to sources of illicit copies. Faces extradition and sentence of up to 10 years.

Not only are publishing corporations trying to subjugate the people through extortion, intimidation, and fear, but the state is complicit, interested, as ever, in both pleasing their sponsors as well as quelling sedition.

Will we ever learn to respect copyright?

Mankind’s cultural liberty is Primordial. Our liberty, our natural right, our power and need to copy has never left us. Our right to copy may have been annulled by Queen Anne, but youngsters are finding out every day that they innately possess the ability and instinctive need to share and build upon their own culture. We will never learn not to copy, because to learn is to copy, and we will never stop learning.

Copyright is a historical accident, a legislative error made in a less principled era. It is time to rectify that error, not the people.

Is that my mission then, to abolish copyright?

No. Copyright should be abolished, and the people should have their liberty restored, but my mission is not to abolish copyright. My mission is, and has always been, to answer this question: “How can artists sell their work when copies are instantaneously diffused upon publication?” Or putting it slightly differently: “How can artists exchange their work for money in the presence of file-sharing, which effectively renders the reproduction monopoly of copyright unenforceable?” The solution is the question. Artists must exchange their work for the money of their fans directly - in a free market. Artists can no longer sell their work to printers in exchange for a royalty of profits on monopoly protected prices. The monopoly of copyright is no longer effective. Its artificial market of copies has ended.

So, what is copyright’s future?

Copyright is an unethical anachronism. It still works as a weapon with which to threaten or punish infringers (with or without evidence), but even with draconian enforcement, the monopoly has ended. When privileged immortal corporations collide with a population naturally at liberty, the latter will prevail, however draconian their ‘education’ by the former. Nevertheless, without copyright, natural rights remain, e.g. an author’s exclusive right to their writings, truth in authorship, and so on.

Moreover, the market for intellectual work can continue quite happily without a reproduction monopoly. Indeed, it will thrive.


Crosbie Fitch is Cultural Libertarian, Natural Lawyer, Copyright & Patent Abolitionist, Software Engineer


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