The Corner

Copyright as Government-Granted Privilege

The free-market movement has long been divided on the issue of intellectual-property rights and hence copyrights. While most people agree that some form of copyright makes sense, the debate is raging over how strong that right must be. Does it compare to the rights we have over our house or our body? Or is it closer to the property rights over things like taxi medallions and emission permits? Well, Tom Bell of Chapman University has a book out that is guaranteed to stoke the copyright fight. 

Copyrights, he argues, are not like other rights — they’re certainly not natural rights. Rather, they are government-granted privileges, hence the title of his book, Intellectual Privilege: Copyright, Common Law, and The Common Good

How do copyrights differ from traditional property? First, they exist only thanks to a federal statute (that’s the government granted part). Also, they are limited in a number of ways that traditional property isn’t. For instance, they expire after a certain number of years and copyright holders have to put up with fair use. Of course, there are good reasons for such a system of government-granted privileges (such as to give an incentive to invest in expensive projects with a guarantee of some returns). But Bell notes that the current system has gone so far that it has made most of us copyright violators without even knowing it. Here is a fun video that makes that case. 

While this video is entertaining and shows the extent of our lawlessness, it should be a cause for concern since in theory each violation comes with a $150,000 price tag. And while many of us will never be fined (because there is no one witnessing our crimes with an interest in enforcing the law), you never know if someday you’ll be hit at a time when you expect it the least for doing something you didn’t even know was illegal. 

So what is Bell’s solution? His book has a lot of ideas but his favorite one, it seems, is the Founders’ copyright. In fact, he likes it so much that he released the book under the terms of the 1790 Right Act. That means that the rights to the book will expire after 28 years (which is still a long time if you ask me) and it grants the author fewer privileges than does the current system. 

Another interesting point he makes in the book is the idea that we should adopt an opt-in system. Today, you don’t even have to opt-in and ask for the privilege to be granted all rights that come with the current system. Changing the system would actually allow people to release their work and products into the world for everyone to use if they choose to. That sounds like the best of both worlds since it allows protections for those who need this incentive to invest time and money in a potential new project and gives freedom to those who don’t need it. Win-win.

Veronique de Rugy is a senior research fellow at the Mercatus Center at George Mason University.

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