A Copyfighter’s Musings

Quick, ultimately silly question: would you allow legitimate infinite copyright in exchange for actual fair use rights and no exclusive right to derivatives?

This question came to mind after reading Matt’s interaction with one of the copyright-equals-my-Property types.  My first problem with any of these discussions is that I have no idea what “their property” actually means. 

Does that mean the expression itself?  All of it, at all times? So exact quoting is out of the question?

What about my property? You may own the music, but I own the CD.  Do you get to tell me how to use my property in my own home?  If you made the music, does that also mean you own my CD player?

That bit is a good rejoinder to people who try to use Locke to justify their moral reasoning.  But, the fact of the matter is, it doesn’t matter if the moral rights theory doesn’t come from Locke or any other major western philosophy that this country was built on. If people want to believe that, fine, and I’d like to spend minimal time convincing them otherwise.

Here’s how I look at things, from a moral rights perspective: Even if those moral rights should/do exist, one at least must concede that they don’t gel with other parts of American law, particularly free speech and private property rights (your music, but my cd).  Now, we could change American law to fit one’s intellectual property theory, but that’d be absurd.  So what we have to do is fudge it. 

From a moral rights perspective, finite copyrights is fudging it, but not necessarily bad. It’s too hard to balance the public interest, interests that exist in the rest of the law, with “all rights reserved”; because the law has trouble with laying out for ALL cases where only some rights should be reserved, we have to have an accompanying time of no rights reserved.  (I’m not advocating this justification, just imagining one from this position.)

You have to add a little bit for the copyright holder, trim a little bit off here for the public, shape it into something reasonable.  It’s not perfectly one theory or the other, but it’s what we have to do.

Then the question is, where do you balance it.  And, when people accept that there needs to be some balance, they see that the property interest they want most is the distribution and public performance rights.  For some others, it will include derivatives – but even for them, there’s a wide variation between how much coverage that should be.

The general point: I’m tired of the moral rights camp, but I’m also tired of arguing with them about their theories. If we can meet them half-way, that’d be pretty cool, because, right now, we have illegitimate infinite copyright, with ill-defined traditional contours of fair use and of the idea/expression dichotomy.  For the most part there is no balance.

Update: Matt responds – I don’t think we’re that far off, even though he thinks I’m laying into moral rights advocates. So I commented back.

Filed by Derek Slater at 2:36 pm under Big Ideas
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