In our series of misconceptions about the copyright monopoly, some people defending the monopoly keep asserting that it carries the same legal weight as property rights. This is not so much misguided, as it is merely factually wrong from every angle.
When faced with the fact that the copyright monopoly is a limitation of property rights, some defenders of the monopoly claim that property rights and the copyright monopoly ?carry equal legal weight anyway?, in an attempt to downplay that argument?s importance in the debate about the copyright monopoly?s legitimacy. Their claim calls for fact checking and further scrutiny.
When comparing the copyright monopoly to the property rights that it limits, we can go to the constitution of many countries to compare their respective weights. Starting with the US Constitution, we can readily observe that property rights are a long-running tradition of the British Common Law, and find several passages that limit Congress? ability to curtail those property rights by law.
One of the most-quoted of these passages may be in the US Bill of Rights, in the Fifth Amendment: ??nor shall private property be taken for public use, without just compensation?.
In contrast to safeguarding property rights, the US Constitution does not require the Congress to have any copyright monopoly at all on the law books, but merely grants Congress the power to enact such a monopoly (?exclusive rights?) if it finds that doing so promotes the development of culture and knowledge.
We find this passage in Chapter 8 of the US Constitution: ?[Congress has the right] ?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.?
The right to create the monopoly ? but not the obligation.
So, property rights are constitutionally safeguarded, whereas the copyright monopoly may exist as a law or it may not, as Congress desires from day to day. That is obviously not the same legal weight. The copyright monopoly is a featherweight by comparison.
Other countries show the same pattern. Let?s look at Sweden, where property rights are similarly protected in the constitution.
In Sweden?s Regeringsformen constitution, chapter 2 para 15, we find that ??the property of everyone shall be safe against expropriation to public or private interests, except when needed to accommodate urgent public interests?, in which case full compensation blah blah. Pretty much a mirror image of the US Bill of Rights. And what do we find about the copyright monopoly? It is indeed in the constitution, in the very next paragraph:
Chapter 2, para 16: ?Authors, photographers, and artists have rights to their works that are determined by ordinary law? [as decided by Parliament].
Thus, we observe the same difference in legal weight here ? the property rights are heavily safeguarded in the constitution, with no rights for Parliament to jeopardize them, whereas the copyright monopoly can be abolished, changed radically, or turned into ice cream tomorrow if the Swedish Parliament so desires.
That is obviously not the same legal weight. The copyright monopoly is a featherweight by comparison.
You've read the whole article. Why not subscribe to the RSS flow using your favorite reader, or even have articles delivered by mail?About The Author: Rick Falkvinge
Rick is the founder of the first Pirate Party and is a political evangelist, traveling around Europe and the world to talk and write about ideas of a sensible information policy. He has a tech entrepreneur background and loves whisky.
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