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Can Moral Rights Expire by Law?

From the Mises Blog

Can Moral Rights Expire by Law?

October 18, 2010 by Jeffrey Tucker

A Norwegian blogger has written what he believes to be a sweeping defense of “intellectual property” rooted in moral claims and natural rights. I always enjoy reading these pieces, if only for sport: it is interesting to see where the argument begins to fall apart, as it necessarily must. And this is because IP is a state-created right that cannot exist in purely voluntary exchange. It is a bit like a claim that the Post Office has the natural right to deliver mail: at some point in the argument for such a position, the writer will have to address the obvious reality that such a “right” cannot exist or be enforced apart from the use of bureaucracies, coercion, and the aggressive hampering of market competition.

The blogger’s hand is tipped only in the penultimate paragraph:

The limitation of such a declaratory law is that with time a work of fiction or a patent becomes so diffused into the culture that it is impossible to avoid them, and therefore all intellectual property rights must be time limited and expire.

No further elaboration on this point, but here you see the crucial issue. It makes no sense to limit a natural right or a moral right. If IP were a moral right, it should last forever. Otherwise, it would be like saying, I have no right to kill you unless you have lived far too long for you own good. Or: you have inviolable property rights unless you own too much stuff. There is a right or there is not. To approve term limits on IP gives the game away.

This blogger defends the statutory time limit on IP on grounds that once a “work” becomes “diffused into the culture,” there is probably no longer any point to IP enforcement (at least I think that is what he is saying) but the only way this could actually happen, according to the blogger’s own theory, would be through the mass violation of the rights of the creator, who, presumably, ought to be able to carefully track and account for all instances in which his intellectual property is permitted to be used by others, which is to say, he ought to be able to control the manner in which his idea/property becomes diffuse in the first place. A real owner would never lose control of his or her property in a way that which elicit a sanguine response. This would be like a person who said, well, this used to be my house some ten years ago, but now there are so many squatters and people living here, I might as well bail out and that’s fine!

Another intriguing aspect of this diffusion argument is that if we are to use this as a standard, the time limit on IP ought to be growing ever shorter over time with the development of communication technology. Perhaps it took 5 to 10 years in the 19th century for a work to become diffuse in the culture, so IP should only last that long. But the statutory term limit keeps growing longer, not shorter. Today, statutory claims on copyright can extend to as much as 170 years, whereas with existing communication technology, an idea can become globally diffuse in a day or even in a matter of minutes. Why shouldn’t term limits on IP, then, be reduced to only a few hours?

Mises Academy: Stephan Kinsella teaches Rethinking Intellectual Property: History, Theory, and EconomicsIncidentally, the link above demonstrates the hazards of attempting to think through these issues of intellectual property from the armchair, in the same way one might consider an issue like whether the private sector can deliver mail. IP is a tricky subject that requires a great deal of thought, serious knowledge of the law, and extensive familiar with history and the economic experience of a wide range of sectors from fashion to art to software. It is not an easy subject. It is worth thinking through because do so helps firm up our understanding of a vast range of other issues.

Regardless of what anyone’s present position is on this subject, everyone can benefit from Kinsella’s class on this topic in the Mises Academy. There is no shortage of heat on this subject out there today. What we need is more light. This is what Kinsella’s class will offer everyone.

{ 5 comments… add one }
  • Crosbie Fitch October 19, 2010, 2:19 am

    Power corrupts, and if one covets power, that seduction will corrupt one’s arguments to claim it as a right.

    The obverse can be seen in Creative Commons. In order to establish copyright to be as much a right as a moral right it must treat the rights indistinguishably and pretend that a moral right may be just as desirable to dispense with as a monopoly. Thus it exudes the ridiculous idea that an author should be able to modulate or nullify his moral rights just as much as his ‘proprietary rights’, but of course some peculiar and awkward jurisdictions don’t always permit this (I wonder why). There is complete conflation of privilege with right in Creative Commons, and I suppose that conflation is a heritage of the corruption in law that informed its founder.

    An author cannot cease to be an author. It is an inviolable fact. An author cannot sell/waive/alienate his right to identify himself as the author of his works – as if he can sell the truth for another to corrupt and claim authorship in his place. Of course an author may tolerate another’s falsehood concerning authorship, but that doesn’t sanction the removal of the public’s right not to be deceived as to a work’s authorship. Sale of authorship/ghost writing is thus as antithetical to moral right as copyright is to liberty.

    Similarly, just because Shakespeare’s dead, that doesn’t mean people are now at liberty to bowdlerise his works and ‘legitimately’ claim them as remaining works of Shakespeare – simply because some have the deluded notion that the only thing preventing this was his right to integrity, now expired.

    People should recognise ‘copyright’ as its own aide mémoire: it is the reversal and opposite of ‘right to copy’. The right to copy is in all the inhabitants, but copyright, by annulling that right, in the majority, leaves the right, by exclusion, in the hands of a few. And this is why the copyright holder is so called – they hold the right of others – the bastard.

    • Stephan Kinsella October 19, 2010, 10:41 am

      You’ve descended again into flowery metaphor-talk so you are losing me. “Similarly, just because Shakespeare’s dead, that doesn’t mean people are now at liberty to bowdlerise his works and ‘legitimately’ claim them as remaining works of Shakespeare – simply because some have the deluded notion that the only thing preventing this was his right to integrity, now expired.

      Well, they are at liberty to do this. Tey don’t violate anyone’s rights by doing so.

      • Crosbie Fitch October 19, 2010, 12:40 pm

        I may ‘lose you’ if you don’t recognise the right to truth, that people have a natural right against fraud, deceit, misattribution, plagiarism, etc.

        This right is where many moral rights come from. They are the natural rights pertaining to intellectual work – as opposed to privileges (‘proprietary rights’).

        It seems we both recognise grants of monopoly to be unnatural, but you do not recognise liberty as being delimited by a right to truth. Perhaps you will at least admit its bounding by others’ privacy?

        • Stephan Kinsella October 19, 2010, 12:47 pm

          You are using unclear, vague language. NOt sur what you mean “delimited by”. Don’t konw what you mean by “privacy.” There is a right to lie, if that’s what you mean. Lying does not violate others’ rights.

          • Crosbie Fitch October 19, 2010, 1:08 pm

            Lying does not necessarily violate others’ rights. However, impairing another’s apprehension of the truth violates their right to it.

            Bill Clinton could have lied to the public about Lewinsky in order to protect his privacy – because the truth of his private affairs is not within the public domain to be apprehended, nor does the matter impinge upon anyone else’s right (there may be a very good argument that it does, that I’m unaware of).

            However, if I present an article of yours and lie to others about its authorship as mine, I am likely to impair those others’ apprehension of the truth (and violate their right to the truth) since the fact of the article’s authorship is public (you haven’t written it anonymously) – unless perhaps I lie in a sarcastic manner (my lie is clearly a lie and not intended to deceive).

To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.