There was a lot to take issue with in Scott Turow’s recent op-ed in The New York Times. Turow, who is currently President of the Authors Guild, took to The Times to criticize the Supreme Court’s decision in Kirtsaeng v. John Wiley & Sons, which brought physical books manufactured and sold abroad within the protective scope of copyright’s first sale doctrine. Turow cast the Court’s decision as another blow to authors’ rights, which, by his account, are being pitilessly washed away by the digital tides. He blames the usual suspects: e-books, Amazon.com, pirates, Google, and—this last one may surprise you—libraries. The coup de grace, he asserted, will be the extension of first sale rights to digital copies of books. (It may comfort him to know that the possibility of that happening is more remote following Redigi’s recent defeat in federal district court.)
What bothered me most about Turow’s argument, however, wasn’t its scapegoating of digital technology. That’s an entirely predictable element of the genre to which the piece belongs. What was troubling but new was Turow’s very wrong assertion that copyright is a fundamental Constitutional right. Here’s how he put it:
Authors practice one of the few professions directly protected in the Constitution, which instructs Congress “to promote the progress of Science and the useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
To be clear, the Constitution does not “instruct” Congress to do anything at all with respect to the protection of intellectual property, and authors are therefore not “directly protected by the Constitution” any more than any other citizens are directly protected by the Constitution. Here’s what Article 1, Clause 8 of the Constitution says:
The Congress shall have power to promote the progress of Science and the useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Giving Congress power to do something and instructing Congress to do something are very different things. The critical difference in the law between “may” and “shall” is Law School 101. Exclusive rights in intellectual property are not natural rights, and they’re not fundamental Constitutional rights. They are emphatically not on the order of Due Process, Equal Protection, and the First Amendment. Copyrights are property only if and to the extent that Congress chooses to say they are. Over time, Congress has chosen to make copyrights extremely strong—much stronger, I think, than is necessary to promote the progress of Science, and arguably so strong that we are courting the opposite result.
Intellectual property rights in general and copyrights in particular are important, and when their scope is circumscribed to ensure the existence of a robust public domain, they benefit society. However important IP rights are, though–and reasonable people disagree pretty vigorously about that–they are not fundamental in the Constitutional sense. No reasonable person would argue that they are.
There are countless amounts of people who are breaking the copyright law everyday, and there are numerous others who get their rights stolen from them because they don’t understand the constitution or even the simple moral rights they have to their work. The internet makes copying and cheating a lot easier these days. A lot of students especially college students don’t understand the laws of copyright. A lot of people also don’t understand that there’s a difference between copyright, patent, and trademark. Many people think they’re the same thing, but they’re not. Copyright typically applies to creative works and the ability for the creator to decide who can copy modify or distribute their works. Patent is exclusive control over products like a water bottle that’s produced by some distinct method. Trademark is completely different and is a distinctive mark or logo that distinguishes one product from another. The one thing all of these things do have in common is that fact that they all fall under the protections of intellectual property. These are also all tangible. ideas are not tangible and expressions are; therefore expressions apply to the copyright law; whereas, ideas do not unless they’re turned into expressions by being written down or something. The concept of the public domain is great because it gives society the ability to turn old work into new, but there is a common misconception that modified works from the public domain are still in the public domain and are able to be modified again, but once an expression is changed in some way, it becomes intellectual property again. Ideas and expressions of intellectual property are all just cycles that will cary on for generations.
“The Congress shall have power to promote the progress of Science and the useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
I don’t know if there is anything to this, (and merely a historical curiosity), but if one were to track the nouns in Art. I, Sec. 8, Clause 8, one gets:
Science/Authors/Writings
[useful] Arts/Inventors/Discoveries
Assuming that the drafters consciously wrote the nouns in parallel, it looks to me like they were trying to protect a more narrow class of things than the present day Copyright Law protects.
“Giving Congress power to do something and instructing Congress to do something are very different things. ”
Could be worse; they also have the power to declare war. Suddenly, a bunch of silly copyright legislation doesn’t seem so bad.
Stephan Kinsella
That’s what I think about copyrights.
Annemarie, remember that this is 1787 we’re talking about, and that Madison would have used the language familiar to his audience, both in his declaration that copyright had been solemnly adjudged to be a common law right (a misdirection, given he knew it had already been debunked in 1774 http://en.wikipedia.org/wiki/Donaldson_v._Beckett ), and in the Constitution’s use of ‘secure’ when empowering Congress to secure that right. The Constitution can only empower Congress to secure those rights that exist prior to the institution of a government, or it could empower Congress to grant privileges to the few, that must necessarily annul the corresponding right from the majority.
I note your insistence that Congress was empowered to CREATE (qua grant) an exclusive right (a legislatively created ‘right’), but this is not what the Constitution says. It readily empowers Congress to GRANT Letters of Marque however.
So, either a) Congress is empowered to secure a common law right or b) Congress is empowered to create/grant a privilege.
One cannot secure privileges and one cannot grant common law/natural rights.
In describing the purpose of the clause, Madison said that copyright had been adjudged as a common law right (and patent via induction).
Madison was the instigator of the clause that empowered Congress to secure the author’s common law/natural exclusive right to their writings – the right recognised as such in Wheaton v Peters.
However much you want to believe it, the clause does not empower Congress to grant monopolies. That Madison/Congress could promptly do so without challenge was enabled under the common wishful thinking within the press, and promulgated by it, that the Statute of Anne was/secured a common law right (despite Donaldson v Beckett). Heaven knows who thought this about patent.
We know that Madison and Jefferson recognised copyright and patents as monopolies, but they kept this aspect rather quiet when putting the case for the Constitutional clause.
The clause facilitated the granting of copyright and patent, but it didn’t actually empower Congress to grant these monopolies – it only empowered Congress to secure the common law/natural rights of the individuals to their writings & designs.
So, Annemarie, the author’s and inventor’s exclusive right to their writings and designs is a common law right, a natural right – and this right is that which Congress is empowered to secure.
http://en.wikipedia.org/wiki/Wheaton_v._Peters
The Constitution’s language of ‘securing’ a right comes from James Madison’s position that copyright (Statute of Anne) was solemnly recognised to be common law right (aka natural right) – and, by induction, that patent was too. Thus Congress is only actually empowered to secure authors’/inventors’ common law rights – not to grant them monopolies.
That the Statute of Anne was commonly and erroneously believed to secure a common law right does not change the Constitution’s meaning to empower Congress to grant that privilege (as Congress/Madison assumed the power to do so in 1790).
See http://culturalliberty.org/blog/index.php?id=289 and http://culturalliberty.org/blog/index.php?id=294