Re: copyright under stress

On Tue 6/6/2000, Kevin W. Grierson <kgrierson[_at_]wilsav.com> wrote:
>
> I'm not trying to be insulting or fan any flames, but your central
> thesis -- that items, goods, whatever that originally derive from the
> commons belong to all mankind -- is the basis of Marxism (from each
> according to his ability, to each according to his need).

Marxism is not the only philosophy which makes the assumption that all things are naturally or originally held in common. Thomas Jefferson's famous letter to Isaac McPherson, written in 1813 (well before the publication of "Das Kapital") makes a similar assumption. My hunch is that we should seek the "basis" of Marxism, if by "basis" we want something that will distinguish Marxism from all other philosphies that make this primitive-communist presuppostion, in the combination of (1) mechanical determinism; (2) class analysis; and (3) a Hegelian view of historical process.

But whatever we finally decide is the "basis of Marxism" and the "basis of capitalism", the bases of democracy are freedom and equality. Private property in tangible movables seems to be more compatible with freedom and equality than any practical alternative. The same was eventually found to be largely the case with private property in land, though the transition from a society which viewed land as something over which one could own various rights to one which viewed land as something which one could own in itself was a transition which brought great benefits to some at the expense of great hardship to many others. Though we may approve of the end result, the transition should have been accomplished more humanely.

Private property in thought, however (which copyrights and patents amount to in the U.S. system) has been found to be the ENEMY of freedom unless it is carefully limited: "guarded with strictness against abuse", in James Madison's phrase.

> The copyright law is a logical extension of personal property law,
> meant to stimulate creative endeavor, and I believe that it has
> succeeded in that goal.

The copyright law as imagined by the Constitution's framers is not necessarily a "property" right (unless you equate all exclusive privileges with "property". At least one jurist, Adam Smith, distinguished the two). But I agree that the copyright law as intended by the framers relies on the ability to realize a return in order to provide an incentive.

However copyright also suppresses creative endeavor, as when some British schoolchildren found they couldn't produce "Oliver!" as their school play because it was playing in the professional theaters (or "theatres") in London, and the London theaters feared competition from schoolchildren. (David Lister, "West End rules force 'Oliver' off school stage", The Independent (London), January 31, 1994, page 3.) Any copyright law will suppress or at least delay some creativity. This is in the nature of a monopoly. The question must be, how much supression are we willing to tolerate in order to get the benefits of the law?

> The purpose of art may indeed be to communicate, but without the
> financial incentive to create such works, such as that given by
> copyright, the people who create such works will have to spend
> enough time on other pursuits to put food on the table, unless
> they can find a rich patron or receive government support for
> their work. Art would still be produced, but it would either be
> restricted to those who can afford to see it, or limited to what
> the government deems acceptable or is willing to pay for.

The term of copyright has grown so long, and the margins of fair use have become so eroded, that although those who have rich patrons (large corporations) can afford any project that suits the patron's priorities, those who don't, before they start work, must consider whether they risk ruin.

Tim Phillips
<hrothgar[_at_]telepath.com> Received on Thu Jun 08 2000 - 03:31:05 GMT