Fifteen Problems with Natural Rights Copyright
Wheaton v. Peters (1834)
“No such right at the common law had been recognized in England, when the colony of Penn was organized. Long afterwards, literary property became a subject of controversy, but the question was involved in great doubt and perplexity; and a little more than a century ago, it was decided by the highest judicial court in England, that the right of authors could not be asserted at common law, but under the statute . . .
Congress, in passing the act of 1790, did not legislate in reference to existing rights, appears clear, from the provision that the author, &c. ‘shall have the sole right and liberty of printing,’ &c. Now if this exclusive right existed at common law, and congress were about to adopt legislative provisions for its protection, would they have used this language? Could they have deemed it necessary to vest a right already vested. Such a presumption is refuted by the words above quoted, and their force is not lessened by any other part of the act.”[2]
1. If copyright is a natural right, then why did the state laws, Constitution, the 1790 Copyright Act and the British Statute of Anne ensure that it expires? Natural rights last forever, if you own the fruit of your labor under natural law, you would own that forever — not 14/28 years as the Founders’ copyright implemented. A person can own moveable and real property for as long as it physically exists, but copyrights only for “limited times.”
2. If natural right arguments explain the extension of copyrights length and scope versus that of the Founding era, then under natural rights arguments why wouldn’t the same principles be applicable to patents? But in the case of patents, term length has only increased from 14 to 20 years, whereas copyright terms have increased exponentially, 14 years to life +70, approximately a 43% increase for patent terms vs. 580% increase for copyright terms.
3. Natural rights would include a property right to full control of all derivative works. But, why then did the Founders’ copyright, as statutorily enacted in 1790, limit only the “printing, reprinting, publishing and vending” of the protected works and not include any derivative control?
The 1790 provision was interpreted as literal reproduction of the whole work as even abridgement and translations were not deemed infringing for years. Notably, similar limitations existed across the state copyright laws of the eighteenth century and England with the Statute of Anne.
4. If copyright is a natural right, then what about the myriad of exceptions to copyright protection including the fair use doctrine and de minimis use?
If it’s a natural right, then why could someone use any of your “property?”
5. If copyright and patents are a natural right, then why did the founders choose to use a different vernacular choice to refer to natural rights “monopolies,” a vernacular choice that denotes that the instrument itself is optional and statutorily created versus a natural right?
6. Natural rights proponents argue that a property right attaches to anything created. But then why did the Founders’ copyright, as statutorily enacted in 1790, only apply to maps, charts, and books? Why not songs, plays, painting or sculptures? Similar limitations existed with the Statute of Anne in England. No state copyright laws covered paintings, prints, sheet music, or sculptures.
Conversely, in France where they believed in a moral rights/natural rights conception of copyright, their copyrights applied to “Authors of writings of any kind, composers of music, painters and draughtsmen who shall cause paintings and drawings to be engraved. . .” which seemed deliberately designed to apply to all forms of known creation.
7. If we have a natural right to anything created, then why has the Supreme Court routinely rejected the “sweet of the brow” arguments on whether a creation involved effort/labor (U.S. v. Feist). For example, in Europe they provide protection for databases that involved work and maintenance, in the United States databases typically cannot be copyrighted (at least not the underlying data).
8. Natural rights arguments generally include that protection of the intellectual property is automatic upon creation (it does not require government granting because it exists even without the government). Then why did the Founders’ copyright, almost all state copyright laws, and the British Statute of Anne, require registration with the government, for copyright protection? Several states even went as far as to require copyright holders provide works at reasonable prices and in sufficient numbers. France implemented their copyright system concurrently and chose to have no “formalities” of any kind, the Founders rejected that idea.
9. A natural right would disregard publication dates, but most states denied copyright to any work printed before the statute took effect, regardless of its originality. A few states even discriminated between different types of original expressive works.
10. If copyright is a natural right, then why is it optional for Congress to create them? It is listed under Congressional powers, and like the power to constitute tribunals inferior to the Supreme Court, Congress could choose not to have copyrights and patents.
11. If natural rights arguments are similarly applicable to patents, then why is it acceptable for patents to adopt a first to file system rather than a first to invent system for protection (as they did in 2012)?
12. Wouldn’t the scope of a natural right be self-defining, rather than specifically defined through statute? As the Supreme Court has explained, “The Copyright Act does not give a copyright holder control over all uses of his copyrighted work. . . . if a person, without authorization from the copyright holder, puts a copyrighted work to use within the scope of one of these ‘exclusive rights,’ he infringes the copyright. If he puts the work to a use not enumerated. . . . he does not infringe.”
13. If copyright exists as a natural right then wouldn’t it apply universally? The Copyright Act of 1790 explicitly denied copyright protection to any creative work “written, printed or published by any person not a citizen of the United States, in foreign parts or places without the jurisdiction of the United States.” French copyright, passed concurrently, provided universal copyright protection.
14. Do natural rights supporters also oppose the “compulsory mechanical license,” and would a natural rights argument make this license and similar statutory license schemes unconstitutional?
15. If copyright is a traditional property right, then why is the creation of copyright and patents the only power given to Congress with a specific delineated purpose to “promote” the “progress” of the “sciences” and the “useful arts”? No other power given to Congress expressly states its purpose.
[1] Several of these problems have been written previously here: http://cardozoaelj.com/wp-content/uploads/2011/02/Khanna.Galley.Reflection-GOOD.pdf, and with R Street here: http://www.rstreet.org/wp-content/uploads/2014/04/RSTREET20.pdf. Some facts and arguments are credited to Tom W. Bell, “Intellectual Privilege.” (2014).
[2] Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 660–661(1834).
