Claims that copyright involves human rights or is a property right are based on the theory that copyright is also a natural right -- a right that exists independent of legislative enactment, even if there are legislative enactments.
This is the theory alright, but it was blown out of the water in a notable essay by Tom G. Palmer, "Are Patents and Copyrights Morally Justified? the Philosophy of Property Rights and Ideal Objects". Howard B. Abrams had already proved that copyright was not part of the commom law in his 1983 Wayne Law Review essay, "The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright."
In the United States, copyright is not a natural right, since the Supreme Court has said so twice, first in 1834 in Wheaton v. Peters, and then in 1932 in Fox Film Corp. v. Doyal.
Mark Brady e-mails me that what the SCOTUS rules doesn't make it right or wrong, even if they are correct on a particular issue. He asks if Patry is "implying that slaves didn't have natural rights until the Thirteenth Amendment?" and notes the "huge difference between natural rights that transcend constitutional and statute law and those particular natural rights that the Supreme Court in its infinite wisdom chooses to recognize at any given point in time."
The problem here is that William Patry seems to imply that natural rights are what the SCOTUS says. But government-granted monopolies (such as copyright) are hardly consistent with the natural right to use one's own property in the first place, and were in violation of such rights long before the SCOTUS--which itself is a government monopoly--came into existence.
He continues:
Yet, rhetoric based on a natural rights basis for copyright are behind all the claims that those who use copyrighted works without permission are thieves or pirates. If copyright is instead a limited privilege that parcels out limited control to copyright owners, one might view issues differently.
Copyright violates the natural rights of non-rights holders to use their property in non-invasive ways, such as making and/or selling copies of their own tangible property. The thieves and pirates are the copyright owners themselves, and their legislative and judicial branch enablers and executive branch enforcers. The "limited privilege" they are granted by the State is a monopoly that runs roughshod over the rights of other people. So yes, we do view issues differently, and in a very different way from how Mr. Patry does.
He closes with a sendup of Tom Bell's book:
Professor Tom Bell has a draft of a book that takes on these issues and many others, called "Intellectual Privilege: Copyright, Common Law, and the Common Good," available here. There is a lot of good thinking and research, and I encourage others to read it.
Well, there's something we can agree on!
