Copyright, monopoly, and misconceptions

Copyright is one of the legal theories that tends to come up most often in connection with e-books. The ease of copying digital data, coupled with laws against breaking decryption on that data, have generated a controversy that has been going on for at least twelve years now and shows no signs of stopping.

Yet there are quite a few misconceptions about copyright that tend to persist, and it’s time to try to clear some of them up. (Again.)

Copyright is a monopoly.

By which I don’t mean to say that publishing is a monopoly, though some people might still look askance at the Big Six or Agency Five with that point of view in terms of the recent Agency Pricing controversy. No, copyright itself is a monopoly—a government-granted monopoly over the publishing of certain works.

“But we own those works,” copyright holders might protest. “Of course we have a ‘monopoly’ over them!” They might find this to be obvious, in much the same way people poked fun at Amazon’s strangely-worded “capitulation” to Macmillan in the first few days after Amazon yanked Macmillan’s print titles.

But as much as people snorted at Amazon’s complaint that Macmillan had a “monopoly over their own titles,” it does have that monopoly—but only because, thanks to copyright law, the government says that Macmillan is the only one with the rights to publish those particular works, due to its agreement with the original copyright holders (the authors). Likewise, copyright holders only “own” their works because the government says they do, not from any property inherent in the works themselves.

If it weren’t for those laws, anyone could publish anything with impunity. (As US publishers did with foreign authors’ books, in the 19th century when the US didn’t recognize other nations’ copyrights.) There’s no natural law saying that only the person who wrote the words can copy them, the way that physical objects can only be in the possession of one person at a time. Anyone can copy words or pictures—unless the government steps in to say, “No you can’t.”

There is a common misconception today, especially among people who create copyrighted works, that the purpose of copyright is to protect the people who create copyrighted works. But in a terrific essay in Open Spaces Magazine, law professor Lydia Pallas Loren reminds us that the real reason that copyright was written into the US Constitution was to protect not the creators of the work, but the public as a whole.

Three hundred years earlier, copyright started out as a private monopoly—the Stationers’ Company (the guild of booksellers) got together and decided to respect each others’ rights to print certain books. In 1557, the crown granted a royal charter to the Company permitting them to destroy “unlawful” books, leading to a form of crown-sponsored censorship that lasted for 150 years.

Extremely suspicious of copyright because of the abuses that had come before, the Founding Fathers explicitly limited its scope in the Constitution. In fact, as Loren points out, copyright is the only clause in the grant of powers to Congress that has an explicitly-stated purpose: "to promote the Progress of Science and useful Arts."

But over the last couple of hundred years, the balance has shifted away from promoting science and useful arts and toward filling the coffers and enhancing the control of copyright holders. This ends up leading to a de facto form of censorship as rights-holders are able to prevent otherwise fair uses simply by having more money with which to fight would-be fair users in court.

One thing that particularly interested me in the article was the mention of the landmark fair use case, pitting 2 Live Crew against Orbison Music in the matter of their parody of “Oh Pretty Woman”. This is a pretty well-known case, and is often brought up in any discussion of parody as legal fair use.

I had always assumed the Supreme Court case had been decided in favor of 2 Live Crew, as the song was a fair use—but Loren points out that in actuality the Court remanded the case to a lower court for reconsideration, but instead Orbison Music saw which way the wind was blowing and entered into a licensing agreement with 2 Live Crew.

2 Live Crew was fortunate. The group had the resources to fight all the way to the Supreme Court that repeatedly emphasized the importance of the promotion of the progress of science and the useful arts as the ultimate aim of copyright. But, in the end, even for 2 Live Crew’s parody, a license from the copyright owner was the result. The need for a license, of course, grants to the copyright owner the power to deny that license which is the power to censor certain kinds of speech.

But others aren’t so lucky. If an author wants to use a particular quote from a song as an epigram for his book, he can still be sued by the rights holder. Even if a court would end up finding his use fair, how is he supposed to find the money to fight it out? Why would he even bother to fight it out rather than just drop it?

The article is very thorough, and Loren explains, the history of the laws, the theory behind the laws, and the harm being caused by the changes to the modern copyright system in ways that most readers can easily understand. This is the kind of article to show to someone who does not understand why copyright reform is so important—or who is not even aware of it at all.

Related: The discussion that followed Are ‘second-hand e-books’ possible?

9 Comments on Copyright, monopoly, and misconceptions

  1. One misconception in your post: very few publishers have a monopoly over the books they publish. Only the copyright holder has this legal monopoly. Unless it says, ‘copyright Macmillan company’ then Macmillan does not have a monopoly.

    Instead, what publishers have traditionally had is an exclusive licence, from the copyright holder, to publish.

    This difference is a real one these days: most epublishers do not require exclusivity, and there is no legal reason why print publishers get one. Instead that goes back in the hoary past of publishing, and will be one of the last teeth pulled from the ancients of print.

    —asotir

  2. Actually, epublishers require exclusive license for certain right. Distributors like Scribd disguised as epublishers do not.

    And none of this argument makes it legally or morally right to steal copyrighted material.

  3. Stealing someone’s intellectual work from their private premises (or pocket) is indeed unethical (whether through removal or copying).

    However, given the monopoly of copyright is unethical in derogating from the individual’s natural right to liberty, to cultural exchange, it is not unethical for an individual to enjoy their natural liberty irrespective of any infringement. Being sued millions for sharing music, for infringing a reproduction monopoly, is an injustice and unfortunately a cultural hazard in these times.

    Copyright must be abolished as soon as possible.

  4. Asotir said “what publishers have traditionally had is an exclusive licence, from the copyright holder, to publish.”
    I would submit Asotir, that this is essentially a definition of Monopoly.

  5. People can expend enormous amounts of energy and writings expounding on the finer points of copyright and monopolies. That is indeed their right.

    I would simply submit however that, as regards our personal lives, it has all become academic and meaningless in a world where copying such material as eBooks, Music and Video has become so easy, private and effectively unpreventable.

    Copyright will not be abolished. But it’s relevance in our private lives will disappear and will be limited only to commercial republishing situations.

    Observing copyright in our private lives will (and actually already has) become “optional”. I can download the latest Cinema hit in an hour or less SHOULD I CHOSE. I can so the same for whatever Book I want to read on my iPhone. Same for ANY music I want to listen to.

    The only barriers to my making this choice are private morality, the limited inconvenience factor and the potential loss of whatever added value comes with being honest and purchasing one’s own legal copy. This is the reality of today. Nothing can roll things back to where they were. The world has changed. It’s done.

    It may be that some writers will earn less than before and others more. It may be that Musicians will earn less now from music sales and will have to go back to earning from personal performances. It may be that fewer writers become read by huge audiences. I could go on. This is what happens when new ways replace old, when new technology changes the way our lives are led in specific ways. There is no point in shedding tears over it. It is the reality of the world we live in. Those directly affected need to accept the new world. If they can adapt they may survive and even prosper. If they cannot adapt they will likely lose out.

  6. An interesting example of copyright came up in the case of The Lord of the Rings. Ace found a copyright loophole and published the books without paying a penny to Tolkien. Tolkien created an authorized version with some editorial changes and sold it (sold a license) to Ballantine. I guess I simply don’t get those who think the world would be well-served to let any publisher pick up, say, the latest Harry Potter and come out with their own edition without paying Rowlings anything for her work. Why, after all, should I invest editorial effort, marketing effort, design effort, and of course, author effort, in a book that will, if successful, be freely taken by others?

    Copyright is designed, as Chris says, to promote development and spread of knowledge. It works. Without it, we might still have writers creating novels (although many writers I know do so in the hopes that they will become financially successful through doing so even though they understand that the odds are against them). We wouldn’t have publishing companies investing in selecting and improving those works. That would be a shame.

    Rob Preece
    Publisher

  7. If readers can’t figure out that not paying for their entertainment will hurt them, too, they deserve the end of that entertainment.

    And, for their crimes to other readers, may they spend an eternity in hell being forced to read bad fanfic and publishing slush piles of dreck that would horrify Cthulhu.

  8. “copyright holders only “own” their works because the government says they do, not from any property inherent in the works themselves”

    I always find it puzzling when people try and distinguish copyright from other forms of property rights by asserting that copyright is just a government granted monopoly. But what exactly do you think property rights are? Legally, ALL property rights are a “monopoly” granted by the state which give the owner the right to exclude others, and only exist and are legally enforcable because the state and the law says they are.

  9. Actually, IMHO, the word `copyright’ (in some other languages: `author’s rights’) gives the wrong suggestion. It suggests that it gives the right to copy to the author. However the author would have that right anyway. What copyright law does is taking away these rights from other people. It is a good thing that authors are protected from others who would rip off their earnings by publishing their works without paying them. However, in the last decades more and more rights have been taken away from the customers who honestly paid for their books. Especially now with ebooks. And this is a bad thing and should be turned back.

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