What is wrong with Falkvinge’s copyright critique

strawman

My social media timeline is filled with links to an article on Torrent Freak by Rick Falvinge, the founder of the Swedish Pirate Party. The article is entitled “The Entire Copyright Monopoly Idea is Based on a Lie“.  The article sets out to criticise the social contract that gives copyright its power, concluding that those who violate their contracts should have them revoked.

The post has proved to be wildly popular, it’s one of those “gotcha” moments where it is proven that an entire legal structure is built on a lie. But the article is based on a misunderstanding of the justifications for copyright, a misreading of the nature of the social contract, and a baffling misuse of Creative Commons. I was tempted to say that Falkvinge’s argument is based on a lie, but I usually try to assume ignorance instead of bad intentions, so I am giving him the benefit of the doubt.

The article actually starts by correctly talking about the Statute of Anne 1710, which gave origin to modern copyright. Falkvinge accurately describes that copyright began as a right for publishers and not authors. So far, so good. But then the article creates a handy strawman by implying very strongly that modern copyright law is a direct descendant of the Statute of Anne, and that it maintains its publisher-centric approach. This is simply not true, as it completely ignores that for most of the world the system of copyright is descended not from the Statute of Anne, but from the concept of droit d’auteur which places the author at the heart of copyright. It is droit d’auteur which strongly influences the Berne Copyright Convention, which is the cornerstone of our system of protection.

Based on the above, Falkvinge builds a social contract that simply does not exist. This social contract reads:

“In return for providing the only service that can make culture come into being for the benefit of the public, the publishers and distributors are awarded with time-limited exclusive rights.”

In all of my years I have not read a single postulation of the justification for the existence of copyright in this manner. The closes that I can think of is the Copyright Clause in the US constitution, which is a very different type of contract. It reads:

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

This is not the exclusive monopoly for publishers that Falkvinge’s contract postulates. There are many justifications for copyright law: moral rights, natural rights, copyright as a reward, copyright as an incentive, etc. I could provide a long list of writing on the subject, this article by Hettinger is still a classic. Heck, just check the bibliography in this Wikipedia article on the subject! The key point is that the entire edifice does not rely at all on the made-up social contract that nobody has ever heard of.

But even if this social contract existed, Falkvinge gives us some dubious reasons to abolish it. He says that:

“With the advent of the Internet, we see that people are creating despite these exclusive rights, this monopoly, instead of because of it. Millions of creators – millions! – have publicly renounced their already-awarded exclusive rights by publishing under a Creative Commons license.”

This is highly inaccurate. People who publish and distribute their works under Creative Commons are using copyright to licence those works. Licence means to give others permission to use the work, it does not mean that they renounce their copyright! And even if people were renouncing their works, in some jurisdictions they cannot do it as copyright is considered a fundamental personality right that cannot be given away (I have written a report about this). Falkvinge may be thinking about CC0  which is a dedication into the public domain and a full licence where applicable, but then he should have stated it clearly.

Finally, there is a strange confusion running through the article that really bothers me.  On the one hand he claims that copyright is a monopoly, an exclusive right given to publishers. On the other hand, authors are giving away their works and renouncing copyright on their own accord. Both cannot be true, Falkvinge is trying to have his cake and eat it. Copyright is either an exclusive monopoly held by publishers, or it is a right for authors. In reality it is an author’s right with some provisions for publishers and intermediaries, the problem is that the article relies on a limited reading of copyright that stops at the Statute of Anne and ignores everything else.

Concluding

Anyone who has ever read anything I’ve written will know that I’m no friend of the copyright industries. Copyright needs to be reformed. But we should not attack a strawman version of copyright because it will backfire on us. I imagine that copyright maximalists have read Falkvinge’s article and will be laughing with delight, it is such a misinterpretation of copyright that it may actually be used against us. “Behold! This is the level of discourse of those who want reform! We cannot listen to a bunch of misinformed amateurs and hobbyists!”

We need to criticise copyright without using strawmen arguments. I am heartened by the efforts of another Pirate, Julia Reda, who has given us a worthy banner to stand behind.

Thanks for reading, I now have to go and debunk all of those articles about how Taylor Swift saved the world.