Karl-Erik Tallmo,

Får ej kopieras utan författarens medgivande. Copyright © Karl-Erik Tallmo

From the book "For or Against the Citizenry: Power sharing", published May 25, 2009

What has copyright to do with democracy?

The book (in Swedish with short English summaries) can be downloaded here as a PDF

Abstract: The debates on whether or not copyright and democracy are compatible concepts are not new. It has been discussed since the 1700s and concerns a form of separation of powers. Copyright is a monopoly, but at the same time, when copyright came, it was a strike at another form of monopoly, the printers' rights, with their roots in the guild system. Copyright could not occur until censorship was abolished, and it can actually be seen as a complement to the freedom of expression. Copyright was early associated with privacy issues. However, if proportionality is not followed in the maintenance of law, both integrity and freedom of expression could be threatened.

Many debaters today claim that copyright and democracy are incompatible concepts, that copyright infringes the privacy of readers and other cultural consumers or that copyright is a kind of censorship.

Others believe that copyright per se constitutes a kind of protection of the integrity of both author and work, and that the requirement for the whole concept of copyright to occur was that censorship was abolished.

Both these views may have some merit, depending on how these interests are balanced against each other in practice. Almost any legislation can tip over in some unwanted direction, unless the various interest areas concerned have been identified and defined well enough, and if the law is not maintained with reasonable means.

This discussion is certainly not new. The importance of this delicate balance has been discussed since the rise of copyright in the 1700s. Strictly speaking, it is a form of separation of powers; the power over information dissemination and information content.

Already 300 years ago there was a debate - just like today - about whether things such as spiritual or intellectual property can even exist, and furthermore if someone could have any rights to it. A great deal of thought was devoted to the question of what claim society can and should have on the products of the labour of intellectuals.

As we all know, music and movies were not the topic of the day a few hundred years ago. Copyright's earliest object was literature (and also drama). During the first centuries of printing, this was primarily a question of printers' privileges and the guild system, and not - as we might say today - about the rights of "content providers". However, even after the legislation finally hade focused on the creator, the author, there was still a debate about whether the writer's right to his own manuscript constituted privilege or property.

It was not very close at hand to regard the spiritual products of the author as a kind of property. The first copyright act from 1710, the English Statute of Anne, seems to avoid the word property as long as possible, and when it appears, it is not defined. The law speaks rather of propriety and proprietors. In an earlier draft of the law, which was never passed, the wording was that the author's "books and writing" was "undoubted property". The fact that these words did not find the way into the final act, is probably indicative of a deep fundamental disagreement among the legislators.

These various ideas were related to the views on conventional property, which can be inherited indefinitely. Now, if the fruits of the mind could constitute private property, wouldn't this property also be possible to inherit for as long as there are heirs? Already Milton and Locke had in the 1600s realized that literary works were of a very special importance for the development of society and for learning. Locke, for instance, took a stand against the "ignorant and lazy stationers" whose exclusive rights to certain classics prevented access to this knowledge when they did not bother to publish new editions.

The notion of educating the citizenry actually found its way into the very title of the first copyright law: An Act for the Encouragement of learning ... And the exclusive right, which the author was granted to his work was limited to a maximum of 28 years after the work's publication. The right could not be inherited.

The issue was still not settled when the act came into force in 1710. Conflict soon arose as to which legal standards that would apply: the non-statutory common law, traditionally found in England, or the written law. The battle about this went on until at least 1774, when a famous trial, Donaldson v. Becket, held that all old precedents of perpetual copyright would no longer be valid; now the written law of 1710 would apply without restriction. The issue was fiercely discussed during these years. Many judicial scholars claimed that authors could only have propriety in the contents of their manuscripts as long as they remained unpublished. As soon as a manuscript was printed and distributed, the public owned it, a kind of socialization inevitably occurred, meant for example Lord Justice Yates:

I allow that the Author has a Property in his Sentiments, till he publishes them. He may keep them in his Closet; he may give them away, if stolen from him, he has a Remedy; he may sell them to a Bookseller, and give him a Title to publish them. But from the Moment of Publication, they are thrown into a State of universal Communion. (From the case Tonson v. Collins, 1762.)

The lawyer and politician John Dunning, on the other hand, said it was the most extraordinary idea he had ever heard, that an author originally had a property in his composition, but "the first moment he exercised his dominion over that property, and endeavoured to raise a profit from it, he lost it." (From the case Donaldson v. Becket, 1774.)

It may perhaps be regarded as a decent compromise, that the legislators decided on a limited term of protection before society may take over and enjoy full advantage of the work in question. However, there are still today debaters who believe that copyright, just as is the case with tangible property, should be possible to inherit forever. Ad hoc based extensions of the term of protection in certain countries and for certain branches may pose a problem regarding the common ownership citizens are waiting for, especially when new legislation takes retroactive effect.

From a societal perspective, survivors of creative individuals may play different roles. On the one hand, which is often forgotten in the debate, they can act as good advocates and introducers of an artistic legacy that perhaps was never discovered or had any impact during the artist's life. On the other hand, there are lots of examples where surviving relatives are blocking access to works or even destroy or distort them. This contrariety suggests that the terms of protection should not be too long but not too short either. (The question of a kind of protection for the privacy of dead people, which this to some extent is about, is extremely complicated and, above all, at present, politically, it is a non-issue.)

Copyright is monopoly, copyright is censorship, people say, now and then. But copyright, which is an exclusive right, was, as touched upon earlier, rather a blow against a much worse form of monopoly, namely the printers' rights, which often were perpetual. The act of Anne was actually modelled after an anti-monopoly act, the Statute of Monopolies from 1624, which radically weeded out privileges, keeping only those considered to have social benefits.

Gunnar Petri shows in his book "The Breakthrough of Authors' Rights" (2008) that copyright law could not really emerge until censorship was abolished. When authors after the abolition of censorship instead became responsible for what they said in their works after publication, many felt that this should be balanced by a corresponding positive right. Daniel Defoe put it this way in 1704: "'Twould be unaccountably severe, to make a Man answerable for the Miscarriages of a thing which he shall not reap the benefit of if well perform'd ..."

Authors got a right of their own, thus making them independent of patrons or inherited fortunes, and this also made it possible for new authorships to emerge. In Sweden, the first legislation regarding authors' rights was enacted a hundred years after England, in 1810, as part of the Freedom of the Press Act. This newly acquired right along with, inter alia, the liberal press helped to create a market where Swedish authors such as Emilie Flygare-Carlén, Fredrika Bremer and August Blanche could support themselves. Gunnar Petri also points out in his book, that this new right was especially important in order for many female authorships to flourish at this time.

Former head of the U.S. Copyright Office, Abraham Kaminstein described the role of copyright in this respect at a hearing in 1965:

The basic purpose of copyright is the public interest, to make sure that the wellsprings of creation do not dry up through lack of incentive, and to provide an alternative to the evils of an authorship dependent upon private or public patronage. As the founders of this country were wise enough to see, the most important elements of any civilization include its independent creators - its authors, composers and artists - who create as a matter of personal initiative and spontaneous expression rather than as a result of patronage or subsidy.

That copyright is primarily a civil law and thus regulates the relations between citizens and not between citizens and the state (which censorship did) is also among the basic democratic principles of this law. One can also mention how equal the law is: it makes no difference between masterpieces and junk. Anything with some originality may be protected. Therefore, it is worrying that some commentators now suggest that copyright should be used as an instrument for cultural policy, in order to reward "good" culture.

When it comes to the rights of the creative man or woman, what is most often stressed is the economic aspect, the right to be able to get something back from the investment in time and money one has done, in order to accomplish a certain work. But another equally important aspect are the so-called moral rights, which concern the author's or artist's or composer's right to be mentioned as author or artist or composer. Furthermore, the work may not be distorted, and the creator has the right to decide in which context his or her work may occur. This can be regarded as a direct extension of the freedom of expression. Maybe only half is won when you have the right to speak, if your utterance does not also have some protection after it has been made.

One can only speculate about what would happen within political debate and science if what has been said and written by politicians, investigators, or scientists could be re-formulated freely and still in distorted form be attributed to these people. Of course, this happens already on a smaller scale in almost every political debate; but try to imagine if this could be done systematically and without penalties, for instance in scientific studies of, say, the side effects of medical drugs or the implications of climate change.

Copyright had rather early a connection with privacy issues. In the U.S., the lawyers Samuel Warren and Louis Brandeis wrote a famous article in 1890, The Right to Privacy. At that time, it happened quite frequently that private letters or other manuscripts of famous people were stolen and published. The right to be spared this kind of public exposure was related by Warren and Brandeis in their article to the protection of an author's unpublished works, which was included in both common law and statutory copyright. The lawyers argued, however, that this did not necessarily need to be seen as a property right but rather as a more "general right of the individual to be let alone."

Today, in the shadow of the file sharing problem, a rather fruitless debate is again taking place about whether intellectual property exists or not. Personally, I believe that a more rewarding angle is to view copyright (especially in its more European form, the creator's right) as a personality right (in German Persönlichkeitsrecht), which amends the freedom of expression. This can be difficult to understand for those who see copyright as something pertaining only to big media companies, but copyright always begins with a single creator, who then perhaps - but not necessarily - assigns all or some of his/her rights to a company or a copyright organization.

Some of today's copyright organizations have unfortunate aspirations of a corporatist nature. The new media may both strengthen and weaken this tendency. The solution to illegal file sharing may lie in some sort of tax or fee that will be managed by such organizations, but then they will regrettably speak for both organized and unorganized creators. On the other hand, with today's technology, it ought to be possible for many creators to manage distribution and payment themselves.

The discussion during recent years about copyright as something that violates personal integrity is not so much about copyright per se, as it is about the means used to enforce the law. Any law can of course be undemocratic and violate people's privacy if it is maintained with disproportionately harsh methods.

When this is being written, it remains to be seen how the recent and much criticized so-called IPRED Act will work in practice in Sweden (it is founded on the EU document Intellectual Property Rights Enforcement Directive, 2004/48/EC). Naturally, it is important from a democratic point of view that it will not allow for anyone to act as a private police in the field of copyright. And this should not be the case, since the injunction for information demand that the law mentions requires a court order.

Article IV in the French act concerning counterfeit books, ”Arrêt du Conseil d’Etat du Roi, concernant les contrefaçons des livres ...”, 1777.

It might be interesting with a little comparison from history. In France a kind of IPRED law was enacted in 1777, but this law gave the bookseller/printer the right to bring with him the nearest police officer and raid another printer's shop if he suspected piracy - and this required no court order. Of course, such a law can easily become a weapon in the fight between competitors.

By virtue of what it does not regulate, and by virtue of its exemptions, copyright law does also encompass the rights of others than the creator, and these rights are very important for democracy. However, I believe that those rights ought to be explicitly entered into the law as more equal rights for the "users" of literary and artistic works. It is, again, a question of balance and separation of powers.

For example, the right to quote, is presently in an international perspective being eroded (in the U.S. and England this right is included in the so-called fair use and fair dealing provisions respectively). Writers are increasingly afraid to quote from the works of others without first getting a permission from the right holders. But the whole point of the quotation right is that it should not require permission. Putting together scientific or critical works with hundreds of quotations would be extremely complicated if this was necessary. Another problem is that the right to quote does not apply under the same conditions in other genres, such as music and film.

Fair use is seen today as a defence, not a right in itself. Imagine if this was the case with freedom of expression - in such a way that it did not arose until someone sued us for defamation, and we could produce a reasonable defence. This problem hardly exists in practice yet in Sweden, but I suspect that it is on its way.

That, which copyright does not protect, is usually considered to belong to an intellectual commons, a public domain. But this is also being curtailed today in various ways, for example when certain libraries and archives claim copyright to their reproductions of medieval manuscripts. Publishers are often obliged to pay for licensing to an archive or a library in order to get to publish a facsimile of a manuscript that was made hundreds of years before copyright was even in prospect. This is a publication right with a price tag, and not, for instance, a fee only covering costs for copying or repro camera work, which of course are services reasonable to pay for.

Therefore, the public domain ought to be defended by its own positive legislation, so that society can prosecute also infringements of the public domain.

Copyright basically includes a lot of good ideas and features, which I think one should not dispose of because the law in its application in some cases is being misused by parties with large financial resources and many lawyers. Back to basics, is a better strategy, I think, which means securing the legislators' original ideas about the balance between different interests in society, especially in light of the need for learning and knowledge. This ought to be the natural thing, if we are serious when we say we now live in a knowledge society.

Note: This text is part of the annual book "For or Against the Citizenry: Power sharing", which is published for the third time by the democracy study group D2D. The book is in Swedish, with short summaries in English. The partaking writers in this year's book are: Bo Djörke, Lars Ilshammar, Kajsa Klein, Laila Niklasson, Tomas Ohlin, Anders R Olsson, Karl-Erik Tallmo, and Ingwar Åhman-Eklund.

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