Macaulay on Copyright In Bullet Point Format

I was going to post a couple of long quotes I found via Theresa at Making Light. But then I would have had to write my own introductory sentences, and it turns out I’m too lazy for that. So not only am I swiping her choice of quotes, I’m swiping her introductory sentences. But you should probably check out Theresa’s post as well, since she also extensively quoted two other interesting discussions of copyright which I am not quoting here.

1. You should read Thomas Macaulay’s speeches on copyright.

These were conveniently quoted by SF writer and firebreathing blue-collar intellectual Eric Flint in Prime Palaver #4. Here’s Flint’s introduction:

These are two speeches given by Thomas Macaulay in Parliament in 1841, when the issue of copyright was being hammered out. They are, no other word for it, brilliant—and cover everything fundamental which is involved in the issue. (For those not familiar with him, Macaulay would eventually become one of the foremost British historians of the 19th century. His History of England remains in print to this day, as do many of his other writings.)
I strongly urge people to read them. Yes, they’re long—almost 10,000 words—and, yes, Macaulay’s oratorical style is that of an earlier era. (Although, I’ve got to say, I’m partial to it. Macaulay orated before the era of “sound bytes.” Thank God.)

But contained herein is all wisdom on the subject, an immense learning—and plenty of wit. So relax, pour yourself some coffee (or whatever beverage of your choice) (or whatever, preferably not hallucinogenic), and take the time to read it. The “oh-so-modern” subject of “electronic piracy” contains no problems which Macaulay didn’t already address, at least in essence, more than a century and a half ago.

I should note that Macaulay’s position, slightly modified, did become the basis of copyright law in the English speaking world. And remained so (at least in the US) for a century and a half—until, on a day of infamy just a few years ago, the Walt Disney Corporation and their stooges in Congress got the law changed to the modern law, which extends copyright for a truly absurd period of time. Which—those who forget history are doomed to repeat it—is a return to the position advocated by Macaulay’s (now long forgotten) opponent in the debate.

2. Packbat boils down Macaulay.

Packbat has summarized Macaulay’s speeches on copyright as five bulleted points:

  • The copyright is not an innate right, but a creation of human government.
  • A copyright is a form of monopoly, and therefore effectively a tax on the public—thus, it should be restricted to precisely as long a term as would make equivalent the harm done to the public by monopoly and the good provided by encouraging the creation of new works.
  • The prospect of income from a property a long time after one’s death is no incentive whatsoever to the creation of new works.
  • The probability that the persons for whom the author might have concern will own the copyright a long time after one’s death is minute.
  • The probability that the copyright owner might suppress the works, for whatever reason, is great.

Do make sure you read Packbat’s surrounding material.

This entry posted in Free speech, censorship, copyright law, etc.. Bookmark the permalink. 

17 Responses to Macaulay on Copyright In Bullet Point Format

  1. 1
    Petar says:

    Not a bad summary, but the whole speech is still well worth reading.

  2. 2
    RonF says:

    When the Republic was formed, one of the first things the legislature turned it’s attention to was intelllectual property law. A good thing, too; security in the rights to the fruits of one’s intellectual labor has been one of the things that has driven the U.S. to it’s present position.

    But the more recent changes to copyright law have been made to favor corporations, not the individual creators. I was appalled when the Disney Copyright Law (as I style it) was passed. What’s going to happen in another 25 years or so? Disney will still be around and will still be trying to make money off of Mickey Mouse, Donald Duck, etc., etc. Will the law be extended again?

    I wonder at this:

    The copyright is not an innate right, but a creation of human government.

    The copyright law itself is certainly a creation of human government. But then so is the Bill of Rights with freedom of speech, freedom of religion, etc., yet it seems to me that we recognize that those laws exist to in fact preserve innate rights. Is there in fact an innate right that the copyright law reflects? It’s not a trivial question, as the answer helps us determine what the shape and extent of that law should be.

    It seems to me that a human being has an innate right to the fruits of their labor. If I take the trouble to plow land, plant crops, weed the field and reap the harvest, do I not have a right to the crop? Is that right purely legislative, or does that legislation reflect an innate right? So, then, if in another enterprise that labor is mental rather than manual, how does that distinction matter?

  3. 3
    Bjartmarr says:

    It seems to me that a human being has an innate right to the fruits of their labor.

    If you plant a field, the fruit of that labor is obvious. It’s actual fruit, and you have the right to eat it or do with it as you wish, in perpetuity.

    If you make some art, the fruit is similarly obvious. It’s a piece of art, and you have the right to eat it or do with it as you wish, in perpetuity.

    Congress has created, out of thin air, additional “fruit” when a person makes art: the right to prevent others from copying it for a period of time. While a reasonable person could argue that this is necessary, I don’t see how they could argue that this privelege, created by the capriciousness of Congress and subject to revision at their whim, could be considered “innate”.

    if in another enterprise that labor is mental rather than manual, how does that distinction matter?

    Well, it doesn’t.

    Confusion arises when we conflate the innate right to own a piece of fruit, with the arbitrary and legal right to prevent others from copying our art. The proper analogy is to compare the fruit with the physical piece of art — the ink and the paper.

    Incidentally, there’s a great site for discussion of copyright at questioncopyright.org.

  4. 4
    RonF says:

    Bjmartmarr – the distinctions you make are real and significant. However, the example you give is somewhat deficient.

    If I create a work of art and someone copies it, my original work of art still has some innate value. I can make a copy of the Mona Lisa (quite legally), and with modern technology I can make a precise one. Yet the Mona Lisa has much more value than any copy of it I can make.

    Let’s take a look at an example where the original has no more intrinsic value than the copy. I invent a new drug. To do so, I have to first determine through various methods what chemical compound might be useful in treating a particular disease. Depending on what it is I then may have to figure out how to grow it’s source and isolate it, or how to synthesize it. I then have to test it for both safety (it won’t kill you) and efficacy (it actually works). I then have to get it through the regulatory process (very expensive).

    Now I market the drug. Someone with an illness gets 20 pills. Fred buys one of the pills from that someone. Fred works for a pharmaceutical company. That company analyzes the pill, quickly figures out what the active ingredient is, and proceeds to ramp up production of it. They are a big company and can do this quickly and (let’s say for sake of argument) a lot cheaper than small company me can. I am out of business pretty quickly.

    I have not enjoyed the fruits of my labor. In fact, I probably lost money on the deal. Has Big Pharm Co, by creating and selling a physical copy of my drug, cheated me of a legitimate innate right to enjoy the fruits of my mental labor?

  5. 5
    RonF says:

    Bjmartmarr – the distinctions you make are real and significant. However, the example you give is somewhat deficient.

    If I create a work of art and someone copies it, my original work of art still has some innate value. I can make a copy of the Mona Lisa (quite legally), and with modern technology I can make a precise one. Yet the Mona Lisa has much more value than any copy of it I can make.

    Let’s take a look at an example where the original has no more intrinsic value than the copy. I invent a new drug. To do so, I have to first determine through various methods what chemical compound might be useful in treating a particular disease. Depending on what it is I then may have to figure out how to grow it’s source and isolate it, or how to synthesize it. I then have to test it for both safety (it won’t kill you) and efficacy (it actually works). I then have to get it through the regulatory process (very expensive).

    Now I market the drug. Various up-front investments in marketing and sales ensue. Someone with an illness gets 20 pills. Fred buys one of the pills from that someone. Fred works for a pharmaceutical company. That company analyzes the pill, quickly figures out what the active ingredient is, and proceeds to ramp up production of it. They are a big company and can do this quickly and (let’s say for sake of argument) a lot cheaper than small company me can. I am out of business pretty quickly.

    I have not enjoyed the fruits of my labor. In fact, I probably lost money on the deal. Has Big Pharm Co, by creating and selling a physical copy of my drug, cheated me of a legitimate innate right to enjoy the fruits of my mental labor?

  6. 6
    Bjartmarr says:

    the example you give is somewhat deficient.

    Um…the example that I give? It was your example. See comment #2, last paragraph.

    Are you objecting to my comparing it to art? Copyright covers art. When I said “art”, I didn’t mean “painting”. I meant “painting, novel, newspaper article, play, song, etc.”

    I invent a new drug. [...] Has Big Pharm Co, by creating and selling a physical copy of my drug, cheated me of a legitimate innate right to enjoy the fruits of my mental labor?

    No, because you never had an innate right to prevent others from duplicating your drug. The law of conservation of matter prevents the duplication of physical objects. (We both can’t own your bike.) That’s an innate attribute of matter. There’s no such natural law for information. Indeed, the natural state of information is obviously to be copied: look at DNA, or look at what happens when you sing a song and a bunch of people hear it and then sing it themselves.

    In a world with patents, you would make a deal with the government to share your drug, and in return the government would keep others from copying your drug for a certain period of time. But “deal with the government” does not imply “innate attribute”.

    You are also confusing copyright and patent coverage. Drugs are covered under patent, not copyright, which is a whole different beast.

    In any case, the innate fruit of your labor is still obvious: you created a drug, and you have that drug. You can eat it to save your life, or you can retire to a cave and call it “your precioussss”. You can do whatever you want with it. That’s the innate fruit.

    I’ll grant you that this is significantly less than the amount you might be able to get from licensing fees in a world with strict patents. But just because the innate value of the product to you is less than the amount you invested in it, doesn’t mean that an arbitrary value added by Congress is also innate.

  7. 7
    Robin Z says:

    Packbat here. Caveat: I haven’t reread Macaulay recently, so any change I may suggest to my bullet-points is mine and mine alone.

    I wonder at this:

    The copyright is not an innate right, but a creation of human government.

    The copyright law itself is certainly a creation of human government. But then so is the Bill of Rights with freedom of speech, freedom of religion, etc., yet it seems to me that we recognize that those laws exist to in fact preserve innate rights. Is there in fact an innate right that the copyright law reflects? It’s not a trivial question, as the answer helps us determine what the shape and extent of that law should be.

    It seems to me that a human being has an innate right to the fruits of their labor. If I take the trouble to plow land, plant crops, weed the field and reap the harvest, do I not have a right to the crop? Is that right purely legislative, or does that legislation reflect an innate right? So, then, if in another enterprise that labor is mental rather than manual, how does that distinction matter?

    I’m not sure – it’s not a trivial question, and that I didn’t notice the landmines inherent in it reflects ill on me. However, if I might suggest something: what would you say if I rewrote my first point as “The copyright is a creation of human government”?

    The reason I suggest this is as follows: whether or not creators have an innate right to prevent others from duplicating their labor, governments are still the entities putting the terms on the practice. In light of that, much as we amend freedom of speech to account for abuses (e.g. yelling “Fire” in a crowded theater), we may amend the copyright the same way. Thus Macaulay’s points remain.

    (Incidentally, someone at ML noticed an error in the second point: to be accurate, it should read “marginal” harm and “marginal” good, as in economics.)

  8. 8
    Ampersand says:

    It seems to me that a human being has an innate right to the fruits of their labor. If I take the trouble to plow land, plant crops, weed the field and reap the harvest, do I not have a right to the crop?

    How does this theory — that we have an innate right to own that which we labor to create — apply to women and infants? Women make infants entirely out of their own labor and materials they have (generally speaking) purchased, plus a bit of semen which is usually freely given to them.

    (This is a digression, but heck, it’s my thread.)

  9. 9
    Ampersand says:

    Welcome, Robin! Thanks for posting here. I hope you get a substantive response.

    (One minor, off-topic nit-pick from me: we don’t forbid “yelling fire in a crowded theater.” We forbid falsely yelling fire in a crowded theater. Sorry to bring it up; it’s a bugbear of mine.)

  10. 10
    Robin Z says:

    Welcome, Robin! Thanks for posting here. I hope you get a substantive response.

    Hey, thanks for copying my bullet points. I’m glad to see that people are reading them. (In fact, I may yet argue for my original language on #1 – it seems an important point.)

    (One minor, off-topic nit-pick from me: we don’t forbid “yelling fire in a crowded theater.” We forbid falsely yelling fire in a crowded theater. Sorry to bring it up; it’s a bugbear of mine.)

    Touché! I would hang my head in shame were I capable. :D

  11. 11
    Robert says:

    How does this theory — that we have an innate right to own that which we labor to create — apply to women and infants? Women make infants entirely out of their own labor and materials they have (generally speaking) purchased, plus a bit of semen which is usually freely given to them.

    People aren’t property.

    But if they were, my answer would be that women don’t actually make infants. Infants make themselves from emergent properties of their origin cells and the information contained therein, one of which comes from the man, and one of which comes from the woman.

    The mother provides all the nutrition, contains the environment in which the cells do their magic act, and bears at least half of the physical risk of the whole process (with the infant bearing the rest). She makes it possible for the baby to be made, which requires a great deal of labor, but she has no conscious “labor” in the creative process unless she’s in there telling the cells how to divide. Does the guy selling sandwiches outside the writer’s office write the book? No – although his role in the book’s creation may be substantial, he isn’t the creator.

    In the case of babies, God or evolution or both gets that credit.

  12. 12
    RonF says:

    How does this theory — that we have an innate right to own that which we labor to create — apply to women and infants? Women make infants entirely out of their own labor and materials they have (generally speaking) purchased, plus a bit of semen which is usually freely given to them.

    To take the last first; I’d contest “freely given”; certainly in the case of a married couple, there is an understanding on both sides as to rights and obligations that come from the consequences of passing on that semen.

    Secondly, a baby/child is more than the sum of the labor and materials. There’s life involved, a human life, and a soul. Only the baby itself has a right to those; neither the father nor the mother have a right to own or destroy them.

  13. 13
    Gwen says:

    But if they were, my answer would be that women don’t actually make infants. Infants make themselves from emergent properties of their origin cells and the information contained therein, one of which comes from the man, and one of which comes from the woman.

    Same applies to the fruit.

    I’d just stick with “people are not property”, myself.

  14. 14
    Bjartmarr says:

    I’d just stick with “people are not property”, myself.

    Sure, but that sort of contradicts the “people are entitled to the fruits of their labor” assertion, doesn’t it?

  15. 15
    Robin Z says:

    Sure, but that sort of contradicts the “people are entitled to the fruits of their labor” assertion, doesn’t it?

    Not really – the rules are different when one creates value for someone versus creating value to be sold. If I mow your lawn without asking, you don’t need to pay me, whether or not you wanted your lawn mowed.

  16. 16
    Bjartmarr says:

    Not really – the rules are different when one creates value for someone versus creating value to be sold.

    Exactly. For different situations, the rules are different. Which is why the assertion that “people are entitled to the fruits of their labor” is ridiculously over-broad. You can hang some qualifications on it in order to make it more reasonable, but then you can’t use it to justify a draconian copyright law.

  17. 17
    Robin Z says:

    Exactly. For different situations, the rules are different. Which is why the assertion that “people are entitled to the fruits of their labor” is ridiculously over-broad. You can hang some qualifications on it in order to make it more reasonable, but then you can’t use it to justify a draconian copyright law.

    Oh, that’s clever. Do “information wants to be free” next! (kidding!)

    (Quick question: “Theresa” → “Teresa Nielsen Hayden”?)