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Last modified: March 22nd, 12,018 HE

Could you patent the sun?

Jonas Salk, on being asked why he hadn't patented his life-saving polio vaccine

Except where otherwise specified, I currently release everything I publish personally without a license. Not a copy_right_, a copy_left_ or a copy_free_ license—no license. Any such work may be appropriated, in part or in whole, by anyone, at any time, for any purpose, and with nary a doff of the cap in my direction. It can be used for purposes I expressly disagree with, and for those I wish I’d thought of myself. I will here try to explain why I would ever want to do such a thing.

Copyright means what it says on the tin. To have copyright over a work is to have the exclusive right to copy that work. Copyright is one of the primary tools, along with patents and trademarks, by which intellectual property is protected. Intellectual property is the idea that the product of a human intellect, intangible though it is, is nonetheless still ownable and thus requires the same safeguards as physical property. Prior to presenting my criticisms of copyright, we should take a look at the history of the idea.

It’s the late 17th century. The printing press has been around for a couple hundred years and has led to a literary boom. More books are printed than ever before, more ideas shared with more people. If someone with access to a press reads a work and thinks that others will enjoy (or, at least, pay for) it, they print their own copies and distribute them. This leads to the rapid dissemination of all sorts of strange and wonderful ideas. To some, such as Parliament, these ideas can be scary. Thus, we first see the idea of restricting the publication of ideas in—where else—the Kingdom of England, through the Licensing of the Press Act 1662. The printing monopoly that this created survived until 1694, when the combined complaints of the multitudes—including many authors—succeeded in halting its biennial renewal. The printers, now shorn of their monopoly, continued to press for its return, but they were unsuccessful.

Then they changed tack. Instead of framing copyright as something that was to be granted to publishers, they reframed it as something for authors. Under these pretenses, they succeeded in pushing for the 1710 Statute of Anne—the first true example of copyright legislation. The creation of copyrighted material also, necessarily, created for the first time the idea of material within the public domain—previously, this had been unnecessary as all material was public domain material.

The next major step in the history of copyright is the 1886 Berne Convention. The crucial takeaway from the Convention is that it turned copyright from something that an author had to register for to something that was granted automatically the moment an idea was fixed. Thus, by simply writing this piece, I am considered to be the copyright holder of it among the 175 countries that are party to the convention. Much as nationality is commonly inflicted upon individuals without their consent, the Convention served to turn all creators into unwitting accomplices in the copyright system.

That is the history of copyright. I am opposed to copyright. The question you may think to ask here is why?, but I would argue that that is the wrong approach. All works existed, prior to the invention and imposition of copyright, in what we now call the public domain. The proposers of copyright believe that there is a need to restrict this natural state of affairs. Therefore, surely, the burden of proving that their proposal is beneficial must lie with them.

So on what bases do they assert that copyright is an improvement over the natural order? To begin with, let’s ask the US Supreme Court—in the Copyright Clause to the First Amendment, they state that the purpose of copyright is to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. This is a refrain we still hear today. Without being granted the exclusive right to profit from their work, creators will be either unwilling or unable (or both) to produce them. What a dystopian world that would be, we surely all agree.

Paradise Lost. The complete works of Shakespeare. The foundational works of all of the major world religions. Countless works of poetry, prose, criticism, philosophy, religion, smut, comedy, art and beauty. All of these predate copyright. This is why the history of copyright is never brought up by those in favour of it. Once one is made aware of its relatively recent invention—it was, after all, a mere few centuries ago—the idea that it must necessarily precede artistic creation is shown to be ridiculous.

I will concede that there is an argument for times having changed since then. Let’s accept, for sake of argument, that people can no longer afford to sit around making great works for the sheer hell of it, and so now need that financial incentive. Taking this approach, copyright promoters base their argument on the idea that copyright ensures this incentive. Repurposing metaphors from the world of actual property, rather than intellectual property, they liken the copying of an idea to the theft of an item. This argument is without merit, for the simple fact that theft deprives the victim of the item in question. Copying, by its definition, does not.

This leads us on to the final defence of copyright: copying intellectual property may not deprive the victim of it, but it does deprive them of a potential sale. This relies on the assumption that when given a choice between getting something for free or paying for it, potential buyers will mostly or entirely take the first option. As a corollary, this suggests two things. First is that that all those who copied the work would have bought it if they hadn’t have had the option of copying. The more often ignored suggestion, but one that is vital to understanding the true benefit of copyright, is that those who copied the work and who wouldn’t have paid for it if copying wasn’t an option deserve to have nothing. I will tackle all three of these in order.

First, will a consumer given a choice between paying for something or getting it for free always choose the latter? They will not. In 2016, the people of Britain donated £9.7 bn to charities. Consider charitable giving as a consumer relation in which the consumer has the option of paying some money, or no money, for the same personal gain: none. Or consider how one of the great projects of the Internet age, Wikipedia, survives exclusively on donations. The effect appears stronger amongst niche projects. The Gratuitous Space Battles expansion pack The Nomads is offered by developer Positech Games for both a standard and a discounted price—live stats on the site show almost twice as many standard sales as discounted sales. My dad often argues for copyright on the basis that the special-interest magazines he edits would go out of business if everybody pirated them. A quick search online reveals a handful of sites on which one could download the issues. Still, the magazines continue unabated. But what if it’s just a case of a tech-unsavvy readership? 2600: The Hacker Quarterly is similarly well-represented on file-sharing sites, and its audience could certainly be expected to know how to work a torrent client, yet it has survived since 1984.

Second, will a consumer who copies something buy it if copying is not an option? This is an easy one to debunk. According to the records I keep on such things (I am a fun guy), I have apparently read some 332 books and watched some 991 films. Each one of these has had some part in making me who I am today (although some certainly more than others). 70 % of people believe file-sharing is acceptable, which means statistically I probably downloaded a few of those for free. Statistically, you will have done so too—there are potentially fewer people who support copyright than those who believe in ghosts, think the Moon landing was faked and are sure that the Earth is only 10,000 years old. Let’s assume that an average DVD costs £6.50 and an average book costs £7.50. Suffice it to say, I don’t think I’ve ever been in possession of just under £9,000 in disposable income.

Which leads us on to the third and final argument for copyright. Without the means to pay for works, is it therefore right to deprive someone of them? Is it right to deprive the poor of the world of research because they can’t afford to pay Elsevier’s extortionate fees? This is a moral question, and thus lacks an objective answer. However, one must remember that one side is in effect arguing in favour of depriving people of something potentially beneficial to them, and that could be given to them at little to no detriment to the giver (see below chart). In fact, it’s possible that it may even prove beneficial to the giver. I’m not sure that’s the side I’d like to be on.

A graph to compare the amount of filesharing per month with box office revenue

Against copyleft

I came to the conclusion that copyright was immoral (not to mention culturally and intellectually damaging) many years ago. As a result, I exclusively used copyleft licenses such as the GNU General Public License. A copyleft license is one that allows someone to freely repurpose a given work, provided they also license it under a copyleft license. In this sense, copyleft licenses are considered viral—copylefted ideas spread through the world of intellectual property, infecting everything they are incorporated into with the same anti-copyright stipulations. Using them is the radical direct action of the intellectual property world. Where copyright has tried to fence off portions of the intellectual commons—this common heritage of mankind—copyleft claws back whatever it can. At least, that’s the theory.

Take another example of a common copyleft license, the CC BY-SA 2.0. The license means that any use of the work is allowed, even commercial, as long as it refers back to the original author. Once, this would have worked for me. By licensing my work under a license such as that, I ensured that it would forever be associated with its original context. But recently, I’ve reconsidered this weaponisation of copyright, even against the corrupt institution itself, more troublesome. I could, certainly, leverage the powers of copyright to ensure attribution. Or, how about just asking nicely? Consider that, while the law supports his ability to parody without permission, Weird Al Yankovic feels it’s important to maintain the relationships that he’s built with artists and writers over the years, and hence he asks permission. I, too, try, whenever possible, to provide sources for quotes, images and the like. I consider it a polite courtesy, both in showing recognition to the original creator and providing the reader/viewer/user who wants to follow the link and find out more with an easy means of doing so. Thus, there is very little motivation for one not to do so, short of laziness (which, as I am currently trying to go through four years’ worth of posts to ensure everything is properly attributed, I would recommend avoiding in the first place). In the unlikely event that someone does refuse to cite me, how am I negatively affected? I am not, and so let bygones be bygones. Presumably, if still refusing to cite me after being asked to, the citor is not particularly fond of me. It might, in fact, not be in my best interests to have them signposting me and directing their audience’s scorn to my front door.

In short, all copyright (including copyleft) ultimately boils down to …saying that if [someone doesn’t] behave according to whatever arbitrary criteria you’ve set out in your license statement, you will send some men with guns after them. I don’t know about you, but I think that’s a pretty shitty thing to do. Thus:

A diagram showing that copyleft actually grows copyright's power, rather than diminishing it.

Against the public domain

So why do I not use a public domain license, such as the CC0 1.0 Universal license or Arto Bendiken’s Unlicense (from the article which provided the previous quote)? Or the Do What the Fuck You Like Public License? The answer here, for a change, is quite short: I do not believe that putting a work in the so-called public domain should be explicit. To do so is to lend weight to the idea of copyright and intellectual property, in particular the insidious provisions of the Berne Convention. By explicitly repudiating the rights it grants me without my consent, I tacitly grant it the power to do so. Instead, I choose to ignore it, and render it impotent. I thought about including a note on the various posts on this website stating that the work was free to be used for whatever purposes one could imagine. It would be a trivial thing, only a couple of lines to implement. But, I thought, I would much rather have people assume it is the case. If anyone decides to check with me my stance on this first (again, potentially quite a polite thing to do), I can direct them here. For the others, please steal liberally the intellectual property I never asked for. If you want to take a photo of me, stick text beside it calling me a silly knobhead and not mention who I am, then let me save you some time:

A picture of a silly knobhead


Comment by Peter Werbe on 2018-05-07 11:29:17 +0000

Hey Ben: Peter Werbe here in Detroit where we publish the Fifth Estate. I went to your blog and saw your article on copyrights. We did one a while ago which echoes a lot of what you write.

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