The Case for Copyright Reform

Late 1800s: Moral Rights On The Continent

In the late 1800s, the publishers’ ever-strengthening copyright monopoly had lopsided the creators’ chances of making any revenue from their works. Basically, all the money went to publishers and distributors, and creators were left starving, due to the copyright monopoly. (Just like today.)

A person in France named Victor Hugo would take the initiative to try to level the playing field by internationalizing a French tradition known as droit d’auteur, “writer’s right”, into the copyright monopoly. Also, he would try to make the copyright monopoly international: until now, it had just been a national monopoly. A French writer could sell his monopoly to a French publisher, and the publisher would enjoy monopoly powers in France, but not in Germany or the United Kingdom. Hugo sought to change this.

Paradoxically, the copyright and patent monopolies were forgotten when free market laws were enacted across Europe in the mid-1800s. Patent law still talks about “prevention of disloyal competition” as justification for its existence, which is a remnant from when guilds dictated products, craftsmen, and prices. If a business practices loyal competition in their industry segment today, we raid them at dawn and haul their ass to court. The copyright monopoly is a similar remnant from the printing guild of London.

Victor Hugo would try to balance the immense powers of the publishers by giving creators some rights under the copyright monopoly as well, unfortunately impoverishing the public further. (It is important here to remember that there are three parties to the copyright conflict: creators, publishers, and the public. Ironically, the publishers, who are the party least necessary to sustain a culturally rich society, are the ones with the by far strongest position in the monopoly’s design.)

While Hugo didn’t live to see the fruition of his initiative, the Berne Convention was signed in 1886. It said that countries should respect the copyrights of other countries, and an agency — BIRPI — was set up as watchdog. This agency has mutated, grown and swelled and is today WIPO, which still oversees the Berne Convention, which has also swelled, mutated and been hijacked twice. (More on this in the next section.)

So, at this point, there are four aspects of the copyright monopoly, which have more differences between them than similarities:

1. The commercial monopoly to fixations of a work. This is the original monopoly granted to London’s printing guild in exchange for censorship.

2. The commercial monopoly to performances of a work. If somebody performs a work publicly on a for-profit stage, the monopoly holder has a right to demand money.

3. The droit moral to be acknowledged as creator. The right for an author or artist to be acknowledged as creator of his or her work, acting as protection against counterfeiting and against plagiarism.

4. The droit moral to veto an improper performance of the work. If an artist feels that a performance slights the work or the name of the artist, they have the right to deny that performance the light of day.

The droits morals are very different in nature from the commercial monopolies in that they cannot be sold or transferred. This sets them sharply apart from the justification that convinced the British Parliament to re-enact the copyright monopoly in 1709.

It is also noteworthy how often these four aspects are deliberately confused to defend the most controversial and damaging of the monopolies, the commercial monopoly on fixations (and later duplication). You will often hear people from the copyright industry defending the monopoly by asking “would you want somebody else to take your work and claim it was theirs?”. However, this is the quite uncontroversial third part, the droit moral of attribution and credit, which cannot honestly be used to defend any of the two commercial monopolies.

The United States didn’t like moral rights, by the way, so they stayed outside of the Berne Convention until they could use it for leverage against Toyota a hundred years later. We’ll return to that later.

1930s: Hijacked By The Record Industry

During most of the 20th century, a battle of prominence raged between performing musicians and the record industry. For most of the century, musicians were regarded as the important party in law and in common sense. However, the record industry would rather see music under corporate control. Active intervention by the selfdeclaredly fascist regime in Italy tipped the scales in this direction.

Copyright in the 20th century was not characterized by books, but by music. The 1930s saw two major developments that affected musicians: the Great Depression, which caused many musicians to lose their jobs, and movies with sound, which caused most of the rest of musicians to lose their jobs.

In this environment, two initiatives were taken in parallel. Musicians’ unions tried to guarantee income and sustenance to the people who were now jobless. Unions all over the West were concerned about the spread of “mechanized music”: any music that isn’t performed live and therefore didn’t need performing musicians. They wanted some power over the speaker technology, and the question was raised through the International Labour Organization (a predecessor to the UN agency with the same name).

At the same time, the record industry tried to exert the exact same power over speakers, radio and musicians. However, the entire political and business world at that time regarded them as a service contractor to the musicians. They could go about running their business if they were service-minded enough, or go bankrupt trying, and weren’t worth diddlysquat more than that to anyone. Anyone, with just one exception:

Fascist Italy.

(This word, fascist, is loaded with emotion today. Italy’s regime at this time were self-declared fascists. We are using the word to describe them exactly as they described themselves.)

In 1933, the phonographic industry was invited to Rome by the Confederazione Generale Fascista dell’Industria Italiana and under protection of the same. At this conference, held on November 10-14, an international federation of the phonographic industry was formed. It would later be better known under its acronym, IFPI. It was agreed that IFPI would try to work within the Berne Convention to establish producers’ rights similar to those of the musicians and artists (which were always sold to publishers).

IFPI continued to meet in countries which welcomed their corporatist agenda, so they met in Italy the next year too, in Stresa. 1935 and onwards proved a bit turbulent for the world at large, but Italy still enacted corporatist rights of the record industry in 1937.

Negotiations for a copyright-like monopoly, attached to Berne and therefore international, was still too tempting for the record industry to resist. So after the war, IFPI reconvened in para-fascist Portugal in 1950. Italy wasn’t suitable anymore, and the conference readied a draft text that would give them copyright-identical monopolies, so- called “neighboring rights”, for producing and printing creative works such as music. This monopoly would be practically identical to the commercial copyright monopoly for fixations of a creative work.

The neighboring rights were ratified by BIRPI (today WIPO) in 1961 in the so-called Rome Convention, giving the record industry copyright-identical monopolies. At the same time, ILO’s attempt to give musicians similar rights had flopped, waned, and failed.

Since 1961, the record industry has feverishly defended copyright, despite the fact that it doesn’t enjoy any copyright monopoly, only the copyright-identical monopoly known as “neighboring rights”.

One needs to remember two things at this point:

First, the record industry is confusing all these monopolies on purpose. It keeps defending “its copyright”, which it doesn’t have, and talks nostalgically about how this copyright monopoly was created in great wisdom during the dawn of the Enlightenment [insert sunset and kittens here], referring to the Statute of Anne in 1709, which wasn’t the first copyright anyway. In reality, the neighboringrights monopolies were created in Europe as late