We recently posted about comments from the US Register of Copyrights, Maria Pallante, in which she stated
that "copyright is for the author first and the nation second." As big believers in the original intent
of copyright law, this is quite horrifying and quite wrong. And yet, amazingly, I found that this particular post, which should have been wholly uncontroversial, really seemed to get the dander up of some IP lawyers, especially on Twitter. I won't repeat them here, but two, apparently prominent, IP lawyers chose to use Twitter to point to that article and throw personal insults my way. But when challenged to support their position, they could not. And that is because they are wrong.
The US Constitution is pretty clear about the purpose of the power that it is giving Congress with the Copyright clause:
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.
Now, we often see people falsely claim that this clause of the constitution guarantees authors copyrights (or inventors patents). But that is not the case. It merely gives Congress the power to do so for the expressed purpose
of "promoting the progress of science and the useful arts." And, in case you're wondering, when originally written, the "science" part was directed at copyright, and it really meant "learning." Going back to the original intent, it most certainly was not created to cover all kinds of creativity -- but certainly the law has changed over time.
I have trouble understanding why so many people -- especially those employed as IP lawyers -- have so much trouble separating out the purpose
from the method
. Yes, the clause grants the power to Congress to create copyright law -- but for a specific purpose: "to promote the progress of science." Nowhere does it suggest, nor even hint at, the idea that copyright's purpose is to benefit creators. Rather, that is the method
. So, to claim that the protections of the author are greater than or even equal to the benefits to the nation, is a clear flip-flopping of the method with the purpose. Of course, in doing so, it not only flip flops the method and the purpose, but it completely distorts the nature of copyright law, and leads to maximalist-style positions, where absolutely no consideration is given to how the public benefits (or, more importantly, is hurt) from specific changes to copyright law.
Thankfully, regular commenter Karl
, provided a bunch of quotes
in support of this point, from both Congress and the Supreme Court (in a comment that won
our weekly award for most insightful comment), but which is worth repeating and discussing on its own:
The primary purpose of copyright is to benefit the public, a fact that has been reiterated by Congress and the Supreme Court, repeatedly:
The enactment of copyright legislation by Congress under the terms of the Constitution is not based on any natural right that the author has in his writings, for the Supreme Court has held that such rights as he has are purely statutory rights, but upon the ground that the welfare of the public will be served and progress of science and useful arts will be promoted by securing to authors forr limited periods the exclusive right to their writings. The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best. Not primarily for the benefit of the author, but primarily for the benefit of the public such rights are given. Not that any particular class of citizens, however worthy, may benefit, but because the policty is believed to be for the benefit of the great body of people, in that it will stimulate writing and invention, to give some bonus to authors and inventors. - H.R. Rep. No. 60-2222
In enacting a copyright law, Congress must consider two questions: First, how much will the legislation stimulate the producer and so benefit the public; and second, how much will the monopoly granted be detrimental to the public? The granting of such exclusive rights under the proper terms and conditions, cofers a benefit upon the public that outweighs the evils of the temporary monopoly.
It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen byproduct of a statutory scheme."... It is, rather, "the essence of copyright," ... and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but "to promote the Progress of Science and useful Arts." - Feist v. Rural
The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an "author's" creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. - Twentieth Century Music v. Aiken
The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors. - Fox Film Corp. v. Doyal
I could understand the usual kneejerk anti-Techdirt trolls lying about this.
But when the person who is supposed to be in charge of copyright doesn't even know this basic fact, it's time for her to be fired.
Now some have tried to twist Pallante's argument to suggest she meant
"first" and "second" temporally. That is, she meant "copyright first benefits the artist, and then benefits the nation second." That's an interesting way to twist it, but there are two problems with this attempt to whitewash Pallante's actual words. First, it's not what she said. If she meant it in terms of the timeline, she would have said that copyright goes to
the artist first, and then to the public later. But she said "for," which implies something very different. Second, and more importantly, even if she did
mean that, it's simply not true
. The point of copyright is not to benefit the public "eventually." It's to benefit the public first and foremost
. The idea
(not necessarily borne out in practice) is that if copyright is working properly, some benefit accrues to the public (generally in the form of access to new works). On top of that, if we do take Pallante's statements at the interpretation presented by her supporters, that implies that the public doesn't get a benefit until the work moves into the public domain. And, as we've seen, works no longer move into the public domain here in the US.
No matter what, this isn't just a semantic argument. This is a key argument about what this law does, who it impacts and how it is structured. And it is simply preposterous, and outside the realm of logical thought, to argue that it was designed first to benefit the artists. Yes, it does
benefit the artists as a byproduct of the method
. That is, it decides that if it benefits the public
then it is great to also
benefit the author. The general recognition of the framers was that this is not a zero sum game, where one side wins and the other side automatically loses. This is about finding the maximization point -- the point at which the public benefits the most
, by figuring out what sorts of benefits should accrue to authors.
When people flip the argument on its head, and suggest that the benefit to the artists is more important than the benefit to the public, they aren't just bastardizing the point of copyright law. They are setting up a structure where the public is inevitably harmed
. If you are merely judging the propriety of copyright law based on how much it benefits authors, then the entire calculus is different, and you undoubtedly hinder the promotion of progress, since at no point is that a consideration factor. One of the key framers of the Constitution, James Madison, clearly worried
that this would be the way things would go:
But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good.
This shouldn't be controversial, nor should it lead to personal insults about my intelligence. It should be plain old common sense, that the purpose of the law is to benefit the public first, and the method chosen is through a system that benefits some authors. The hard truth that appears to block many IP lawyers from coming to grips with this is the realization that if they acknowledge this fact
, it means that copyright law that can be shown not to benefit the public
or (worse) to hinder the public
is, on its face, unconstitutional, since Congress has no power to grant such monopolies if it is not to benefit the promotion of the progress of science.