Lord Kames Explains Why Copyright Is Not Property… In 1773
from the a-look-back dept
Mockingbird writes "I’ve posted the full text of Lord Kames’s opinion in the important Scottish Sessions case of Hinton v. Donaldson from 1773. This was the case that rejected for Scotland, by a vote of 11-to-1, the theory of “common law copyright”, that authors (meaning, in practice, publishers) had a perpetual copyright, at common law, of their writings. It was followed a few months later by the English House of Lords’s decision in Donaldson v. Beckett, in which the English Lords rejected just as forcefully the claim that authors had perpetual copyright under the common law of England.
Of the twelve Sessions Lords who decided the case, ten issued opinions. Lord Kames’s is one of the longer ones, and one of the most famous. Kames builds his case on principles of common law, property law, and commercial law, and finds the claim of “common law copyright” to be inconsistent with the principles of all these areas of law:
this claim, far from being founded on property, is inconsistent with it. The privilege an author has by statute, is known to all the world. But I purchase a book not entered in Stationer’s hall; does it not become my property? I see a curious machine, the fire engine, for example. I carry it away in my memory, and construct another by it. Is not that machine, the work of my own hand, my property? I buy a curious picture, is there any thing to bar me from giving copies without end? It is a rule in all laws, that the commerce of moveables ought to be free; and yet, according to the pursuer’s doctrine, the property of moveables may be subjected to endless limitations and restrictions that hitherto have not been thought of, and would render the commerce of moveables extremely hazardous. At any rate, the author of avery wise or witty saying, uttered even in conversation, has a monopoly of it; and no man is at liberty to repeat it.
Lastly, I shall consider a perpetual monopoly in a commercial view. The act of Queen Anne is contrived with great judgement, not only for the benefit of authors, but for the benefit of learning in general. It excites men of genius to exert their talents for composition; and it multiplies books both of instruction and amusement. And when, upon expiration of the monopoly, the commerce of these books is laid open to all, their cheapness, from a concurrence of many editors, is singularly beneficial to the public. Attend, on the other hand, to the consequences of a perpetual monopoly. Like all other monopolies, it will unavoidably raise the price of good books beyond the reach of ordinary readers. They will be sold like so many valuable pictures….. [the] booksellers, by grasping too much, would lose their trade altogether; and men of genius would be quite discouraged from writing, as no price can be afforded for an unfashionable commodity. In a word, I have no difficulty to maintain that a perpetual monopoly of books would prove more destructive to learning, and even to authors, than a second irruption of Goths and Vandals. “
Filed Under: copyright, lord kames, property, scotland
Comments on “Lord Kames Explains Why Copyright Is Not Property… In 1773”
My father was right ...
Re: My father was right ...
People are getting dumber each generation ….
Re: Re: My father was right ...
Which means that this movie
may be oddly prophetic….
Re: Re: Re: My father was right ...
It must suck to look around and see that the comedy he created is turning into a documentary.
Re: My father was right ...
more like corruption and being led by people that are completely disconnected with reality. And how can they be connected with reality, they have spent a life time sitting in an official position of power like kings of old.
Acknolwedgement of a Limited Monopoly
It amazes me, 300 years ago it was recognized that copyright should be limited in scope. Too bad our current legislatures fail to grasp the intellect of Lord Kames.
Re: Acknolwedgement of a Limited Monopoly
Thomas Babington Macaulay had similarly brilliant and insightful things to say about limited copyright, again to the House of Lords, in 1840 or so. Good ideas will not die, they will just come in and out of fashion.
Re: Acknolwedgement of a Limited Monopoly
Unfortunately, the legislature has placed a limit on it. So many would argue that we have recognized that unlimited copyright is bad. The problem is that the limit is not tied to any result that can be quantified.
Wait wasn’t not that long ago that everyone here was claiming that the constitution needs to be updated because it was out of date? Hmmmm…
Re: Re:
I may have missed that particular comment as I have never seen anyone say that the constitution needs updated. How about you link to it.
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Actually, I made a sarcastic post to that end not long ago. But I think his point is that it doesn’t need updated, it just needs obeyed.
Re: Re: Re: Re:
Well, if that’s the case than I retract my statement. It’s hard to tell with all the Anonymous Cowards out there hell bent on discrediting everything said on this site without any semblance of intellect or understanding.
Re: Re: Re:2 Re:
I resemble that remark. Actually, I was an AC (though I really still am but can be traced through the John Doe posts) and did make a few bad posts at first. The more I read here and see what is going on in the patent/trademark/copyright areas, the more I have come to be a believer.
You can be against exclusive rights over a work, against the monopoly granted to the author, but we have to have some type of regulation regarding the right of attribution.
There is a phrase stated by Lord Kames:
“I buy a curious picture, is there any thing to bar me from giving copies without end?”
There are argument to both sides, but what if people that get copies of that picture, photograph, book, etc starts stating that he painted it, or wrote it? What if he becomes famous because of that lie, and people starts hiring him to draw pictures, take pictures, etc? On the other side, we have the real author, not knowing what to do, saying he wrote/painted the work. Maybe even he doesn’t have funds to go public stating that he is the real author! Don’t you think there is something wrong with this?
Maybe copyright is not the way to regulate the right of attribution, but I think nobody can disagree with the statement that this needs to be regulated somehow. For the time being, is copyright. Maybe in the future there is another form.
Yes, some people don’t care about the right of attribution. But many people do, and we have to respect that.
Just a thought.
MC
Re: Re:
“but what if people that get copies of that picture, photograph, book, etc starts stating that he painted it”
Copyright doesn’t stop plagiarism. People don’t plagiarize because if they get caught they look stupid. Lord Kames even addresses the attribution/ownership idea in the section provided here: “The privilege an author has by statute, is known to all the world”.
The idea that someone could steal another’s work and get famous by crossing off one name and using his own is laughable, especially in this day and age.
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It might me laughable to you, that you didnt experience this situation. But it is possible, beleive me. In fact, I am participating in one case. If it is possible, then it must be regulated.
Copyright is a way to stop plagiarisim, at least outside the US, with some moral rights. Maybe not the best as it is now thought of, but it is a way. I welcome any other way to stop it, replacing copyright.
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I am not sure I agree that attribution needs to be protected, but if it does it seems to me that the way to protect it is by requiring attribution, not by restricting distribution.
To be sure, care would have to be taken or this quickly becomes unworkable. For instance, it should only be necessary to name the immediately prior source, not every source. If Ansel Adams took a picture of the moon over Hernandez, New Mexico, and Joe Dokes recreated the image on 35mm film, and Trace Schmitt wrote a song about spilling beer on his Joe Dokes print of the moon, and MC Foto created a maship of the Schmitt song, the independent director who produces a film containing the mashup should only have to credit MC Foto. But, with appropriate limits, it could be done.
Copyright is really bad at doing this, incidentally. Say you write a book, and assign the copyright to a publisher. The publisher can now publish the book without _any_ attribution, or with attribution to anyone. Nothing in copyright protects your right to attribution.
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My impression was that the privilege he referred to is the one granted by the act of Queen Anne, i.e the Statute of Anne, not a reference to attribution.
However, I agree that the issue of copyright as it pertains to free reproduction and distribution should be considered separately from the intellectual fraud of plagiarism.
Re: Re:
Let’s say I’m an aspiring writer. I’m poor and do most of my writing on a typewriter. I write, what I think is, a pretty good screenplay for a movie. I buy a trade magazine and select an agent from the ads. I send a copy of my screenplay to the agent and hope for the best. Several weeks later I get a letter saying thanks, but no thanks. Crushed, I toss the letter and wallow in my self pity.
The next year, I start seeing commercials for a new movie that appears to be almost exactly like my screenplay. I do some research and find out the “writer” of this movie happens to be represented by the agent I sent my screenplay to. It seems that the agent passed my creation on to one of his other clients. I pull out my original copy and head to the first (and cheapest) lawyer I can find.
Now, tell me, how does current copyright law protect me? I wrote an original screenplay which was taken by someone else and claimed as their own. The only proof I have is a single typed copy. I have no dated digital records, though the other side probably does I don’t even have a rejection letter from the agent.
So, you are correct, there needs to be a way to regulate attribution, but current copyright law doesn’t do it. In fact, current law is more likely to protect the person who stole my creation, in this case.
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Had you bothered to register your work with the copyright office you would have all the proof you need. On top of that, you could sue for actual and punitive damages. So yes, current copyright law does do it.
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Thanks for the valuable post.
In my personal opinion copyright law, or better said, copyright, can help in the following way: if, after you created the work, you go to the local copyright office to register it, they you will have proof.
If you dont register it, then you will need to use the general proof principles of law: indicia, pieces of evidence that lead to a “truth”. Possible witnesses, internal documents, etc. But I know is hard.
But of course, I agree that there can be cases that you won’t have any proof, but this applies not only to copyright, but to all disiplines. What I mean is that the situation that you clearly described (lack of proofs) is not a deficiency of copyright alone, but it can happen in all situations in a day to day life.
Re: Re: Re:
> “that appears to be almost exactly like my screenplay.”
This happens ALL THE TIME in Hollywood. But remember, “almost” isn’t good enough. It must be exact. You can’t copyright themes, only the manifestation of those themes.
http://en.wikipedia.org/wiki/Knocked_Up#Alleged_copyright_infringement
Re: Re: Re: Re:
Actually, substantial similarity plus access to the work is often sufficient to prove infringement. In the OP’s hypothetical, a competent plaintiff’s lawyer would sue and demand the mail logs from the agency. If there were none, he would depose the agency’s staff, including the agent but also including the receptionist. Hourly wage office staff rarely have a good enough incentive to expose themselves to criminal liability for perjury.
That is not to say that it is easy, but it is possible. The deeper issue, here, is that the OP is not actually complaining about attribution, but about payment. Presumably the screenplay author would not be satisfied if the studio said, “Thanks!”, produced the movie, listed his name as the author of the screenplay, and paid him nothing.
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It’s simple enough to send yourself a sealed copy via registered/certified mail (I forget which is the preference.
In that case, then current copyright law actually does more than it should.
You ought, completely apart from copyright, to have been able to sue the agent for breach of agency per their fiduciary duty created when they posted the listing and took in your work for consideration. For this purpose, agency law is sufficient and makes copyright rather superfluous in my opinion.
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It’s simple enough to send yourself a sealed copy via registered/certified mail (I forget which is the preference.
I don’t believe that method has ever been upheld in court. If you know of a precedent setting case where it has, then do tell.
Re: Re:
“Maybe copyright is not the way to regulate the right of attribution, but I think nobody can disagree with the statement that this needs to be regulated somehow.”
The hell they can’t. Requiring attribution is a sort of tax. And what is the granularity of the attribution? Say I use a Tenniel illustration from Alice In Wonderland in a video. To I have to give Tenniel a credit? How about Carroll? How about the engraver? The guy who digitized it?
And what of the guy who comes after me and uses that portion of my vid in a holodeck work? How is he going to know exactly what came from where? Is every work of art going forward going to be the annotated edition of itself?
Screw that. Just do stuff. Like your grandfather did.
Re: Re: Re:
Again, there are people like you that just doesn’t care being attributed a work. But please respect others who do care.
You simply let the people use your works. As you don care, it won’t damage you. But please dont don’t try to “universilize” your opinion, as people many people may care about attribution. And they need to be protected.
I dont say that attribution is required, as you say “Requiring attribution is a sort of tax”. Each eprson who creates a work is free to allow others to take credit over the work.
Re: Re: Re: Re:
“Again, there are people like you that just doesn’t care being attributed a work. But please respect others who do care. “
It’s good manners, sure. I try to do it myself, unless it becomes a pain in the ass. But copyright carries the force of law, and that’s being a bit too insistent for my taste.
Re: Re: Re: Re:
But please dont don’t try to “universilize” your opinion, as people many people may care about attribution.
Wow, I guess those with differing opinions should just keep them to themselves, huh? When you said “…nobody can disagree…”, you really meant it. Well here’s one for you: go get stuffed.
Re: Re: Re:2 Re:
Ok, maybe I chose the wrong words, but why are you attacking me?
We were discussing about an interest issue, and you were just trying to look for one incoherence I did…
Come on, let’s write with respect, I never attacked anyone, so I don’t understan why yo do it…
Re: Re: Re:3 Re:
Come on, let’s write with respect, I never attacked anyone, so I don’t understan why yo do it…
When you attempt to tell other people what they can and can not say, that’s an attack. Expect a response if you do.
Re: Just say no to intellectual property
“Maybe copyright is not the way to regulate the right of attribution, but I think nobody can disagree with the statement that this needs to be regulated somehow. For the time being, is copyright. Maybe in the future there is another form.”
I for one do not believe in an artificial system of intellectual property at all. To say that someone has any rights over something they have sold is asinine to the extreme.
An artist creates something and he/she sells it, end of story. If everyone copies it that is no big deal, that is how our culture works. The artist then goes and creates something else. It is the best incentive around to keep creating.
We don’t have to wait until some mythical future date to abolish IP law. We see the flaws, we see how the resources are being wasted, we see how the concentration of power corrupts corporations, why do we defend a broken system?
An imaginary system that is broken by design and still people want to “reform it”. It amazes me how far people will run with a bad idea.
Re: Re: Just say no to intellectual property
I understand, and it’s your opinion.
People think differently. I believe that the IP system as it is now does not contribute to the mankind, specially patents. But this doesn’t mean I don believe in IP.
“An artist creates something and he/she sells it, end of story.”
With all due respect, I dont agree. I maybe agree that the person that has obtained the work may sell it, but never saying that he created it, unless the author doesn care, of course. I am an amateur musician. Once I finish a song, I usually show it to some friends, or I go to radio stations and leave it there (in my country is possible, I know in the US is quite difficult). I don’t care if the person who received the song at the radio station begins to sell it, but at least I want him to say that I recorded it.
That’s my point.
Re: Attribution
“what if people that get copies of that picture, photograph, book, etc starts stating that he painted it”
There’s already a perfectly good law against this – nothing to do with copyright. It’s called fraud.
Re: Re: Attribution
Ok, true. But the existence of copyright gives the possibility to register the work, and to have proof that you are the rightfull owner.
Re: Re: Re: Attribution
The problem, here, is with the concept of “ownership”. You are not the “owner” of an idea, or a creative expression. You might be the author – the person who discovered the idea, or expressed it – and we can agree or not as to whether that should give you any special rights to it. But it is not property, and you cannot “own” it.
Re: Re: Re: Attribution
There are already perfectly good ways of doing this without copyright as well.
Re: Re: Re: Attribution
Maybe – but that’s only true in the US – because of the historical requirement to register copyrights – which was abandoned when the US accepted the Berne convention. At that point the copyright office became redundant – odd how such institutions find a way of living on…
In any case most actual attribution frauds are the other way around. e.g. fraudster paints picture – claims it’s by Picasso etc
Re: Re:
but what if people that get copies of that picture, photograph, book, etc starts stating that he painted it, or wrote it? What if he becomes famous because of that lie, and people starts hiring him to draw pictures, take pictures, etc? On the other side, we have the real author, not knowing what to do, saying he wrote/painted the work. Maybe even he doesn’t have funds to go public stating that he is the real author! Don’t you think there is something wrong with this?
prolific copying and distribution of a work makes it known who the author/writer is and makes these plagiarism issues easier to deal with. if there are millions of copies of a picture or book floating around over the years with your name on it, then it’s not hard to get people on your side in the argument that a work is yours, especially if you gave it to them. there is tons of drama on the internet about this very thing (do a google search for “dear god, please make everyone die. amen”)
if you want to plagiarize a college paper and download one from the net, what’s to stop the school or instructor from searching the same net and finding the same paper? getting your stuff out there for people to see hear and read solidifies you as the owner.
in fact, attribution is a huge deal even for the most notorious of pirates. there are countless tales of the famous aXXo getting his feelings hurt over people uploading his movie rips as their own or for putting the aXXo name on low quality rips.
aXXo has a reputation for quality releases that he/she wants to maintain and get credit for and when he/she feels besmirched there is drama and not refusal to work with a given site or tracker.
no one believes that aXXo wrote, directed, or produced the movies he uploads, nor does aXXo want anyone to believe that, but he does want his reputation and standing with the scene protected.
Maybe copyright is not the way to regulate the right of attribution, but I think nobody can disagree with the statement that this needs to be regulated somehow. For the time being, is copyright. Maybe in the future there is another form
it sounds more like a kind of trademark issue to me. you want your identity as a creator protected, and your works, however they are distributed, to be associated with your identity. it would seem that exposure would regulate a lot of that: if everyone has your picture or book, then it would be hard to disprove that you painted or wrote it.
a lot of this is covered in “against intellectual monopoly”:
http://www.dklevine.com/general/intellectual/against.htm
levine talks about plagiarism as a kind of identity theft, and how it’s reasonable to want consumers and producers alike to protect against it.
Re: by mc
Or worse still, what if people use those copies as weapons to commit criminal acts? Break the glass of a picture frame, and threaten people with the shards to bring down a plane? Or use the conducting metal of the hardcover lettering to close the contacts on a home-made nuclear bomb?
This is why we need stronger, not weaker, copyright laws: because it’s necessary to fight Terrorism. If you want the world to remain free of creatively-used Terrorist weapons, you must never let anything fall into the public domain.
I definitely recommend reading the whole thing
Thanks for finding this, Mike. There’s a lot of good stuff in there, like this:
“At the same time, it will be founded upon the strictest examination, that the profit of such a monopoly would not rise much above what is afforded by the statute. There are not many books that have so long a run as fourteen years; and the success of books upon the first publication is so uncertain, that a bookseller will give very little more for a perpetuity, than for the temporary privilege bestowed by the statute. This was foreseen by the legislature; and the privilege was wisely confined to fourteen years; a sufficient encouragement to men of genius without hurting the public interest.”
consider...
To the Anonymous it may concern:
Its worth considering the timing of the polarization of intellectual property law. Nobody cared about inventor’s and author’s rights to limited duration monopolies when it wasn’t so easy to copy their work.
Now that its easy to steal a bit of code, some say down with patent. Now that its easy to copy a song, some say down with copyright. But they don’t stop to consider that the means by which they are so easily able to appropriate these materials were created by the system they are fighting so hard to destroy.
And indeed, the REASON for intellectual property, is not motivation. People are motivated to great lengths by notoriety and sheer accomplishment. The REASON for intellectual property, is that it afford the inventor or the artist a means for securing his livelihood after his creation, while pursuing further creation.
This is common sense. If I cannot make money from something I create, because you are free to copy or distribute it at will, then I cannot afford to make these creations my exclusive pursuit. Destroying IP disincentivises people from becoming professional artists, and professional inventors.
Men wholly committed to an endeavor will typically achieve more then men whose attention and time are divided between many. This is why professionals are better at things than amateurs.
So when you’re bashing intellectual property, remember, the REASON you care to bash it, is because it has allowed men to create the means by which you have overcome it. And remember, that the reason for intellectual property is “To promote the PROGRESS of Science and useful Arts.”
Re: consider...
“And indeed, the REASON for intellectual property, is not motivation.”
Um, no. That’s exactly the reason intellectual monopolies were instituted. It’s supposed to be motivation, not a welfare system.
Re: consider...
How long did it take you to make up that load of crap?
Re: consider...
“it has allowed men to create the means by which you have overcome it”
Not true – the technical means has come about in the first instance through the progress of the pure sciences – in particular mathematics and physics. Pure science has always had a free and open culture of sharing.
The internet and the world wide web are primary examples of free systems that have arisen from this free culture. Tim Berners-Lee himself comes from the free world of high energy physics.
What we are seeing now is the greedy world of the arts and engineering (or to be precise the parasites who have grown up to feed off artists and engineers) being challenged by the free principles of pure science.
Re: consider...
“The REASON for intellectual property, is that it afford the inventor or the artist a means for securing his livelihood after his creation, while pursuing further creation.”
Or whilst sitting on his backside doing nothing as the royalties flow in.
Odd how the great musicians of the past (with a less favourable copyright regime) carried on creating new work (often their best work) well into late middle or old age whilst modern musicians rarely produce anything of value past the age of 35.
Uh, Mike…all that is well and good, except that copyright in the United States (as it is in most places) is statutory law, not common law.
So, posting an archaic, lengthy tract about why there should be no perpetual copyright in common law suggests that you don’t necessarily recognize the difference between the two–which is even more basic than first year law school stuff. (High school civics class, I think? Anyway, it’s dead simple.)
Re: Re:
Uh, Mike…all that is well and good, except that copyright in the United States (as it is in most places) is statutory law, not common law.
Uh, ASH, I posted it because I thought it was an interesting quote. That’s all.
So, posting an archaic, lengthy tract about why there should be no perpetual copyright in common law suggests that you don’t necessarily recognize the difference between the two–which is even more basic than first year law school stuff.
And bitching about it suggests that you don’t necessarily recognize how a blog works, which is even more basic than most kindergarten stuff.
See how that works?
Get over yourself. We post what we find interesting. There have been ongoing discussions about copyright as “property.” This seemed like an interesting historical look on the subject.
When you run the blog, then you get to decide what I can and cannot post. Until then…
All horses are the same colour
“And indeed, the REASON for intellectual property, is not motivation. People are motivated to great lengths by notoriety and sheer accomplishment. The REASON for intellectual property, is that it afford the inventor or the artist a means for securing his livelihood after his creation, while pursuing further creation.”
According to this logic I can prove that all horses are the same colour!
It is an induction argument that fails on step 1.
So how does anyone become a professional with no back catalogue to earn money from?
That first work is produced as an amateur – but then by your logic it can’t possibly be good enough to earn money from.
Yeah but...
it’s 2009. Would you want your doctor to go by standards created in 1773? “My lord, it appears your humors have gone awry, let me put these leeches on your eyeballs to cure your heart pains. Surely this will heal your ails..”
I read this blog because you’re providing opinions that are about promoting continued progress in technology and copyright law. You just lost me with this inane post.
Re: Yeah but...
If we dont look back at where the Imaginary Property laws were formed and deformed as we move forward through time it is not at all unlikely that the conversation would be
“Alex, it appears your kidney has gone awry, there is a procedure to accurately determine the source of the problem, I cannot perform the procedure because I could not afford the licensing costs for the patented technology used in the procedure. Please check with the 2 hospitals in the country that had the cash to license the technology, or I will dig up some leeches and …
Re: Yeah but...
“Would you want your doctor to go by standards created in 1773”
You mean like; can a doctor use a reference system without violating some assinine patent? Or reprint his own work from a journal?
Which, by 1773 standards would be a no-brainer.
Hrm. Yeah, actually let’s go with that.
There’s a very simple way to end all this and it only requires adding 27 patents to the current payload.
I propose techdirt patents/copyrights the 26 letters of the alphabet (and space to be sure), then everytime anyone says anything about how longer copyright=good, they have to pay techdirt a performance fee…………..
patent – (a method for constructing symbolic representations of existing atmospheric vibrations currently reproducable by the larynx of species homo sapiens, in order to store, correlate and preserve such patterns)
Do this, and everyone would see how stupid the current system is…loads of publicity…
The ideas of ‘original’ and ‘invention’ are mostly not as clear cut as is commonly thought, When almost anybody writes or paints or formulates something that represents an idea about reality, they use unknowingly a lot of recursive calls( to use a IT term)upon many formulations made in the past by many other ‘authors’– “as you like it” is not just a simple string of words it also calls a whole play ( and a vast history of actual performances and variations on its themes)
In truth ‘original’ is in itself only a convention that should not be given any sort of absolute status. Questions of economic rights ,are questions of groups- questions of power , and power should never be absolute. The answer will always depend upon circumstance.
Mike you are missing the point about “property” – which to lawyers does not involve “tangibility” (you have a property right in your bank account – it’s not tangible). Indeed, money itself is “artificially scarce”. In copyright you can own the copy, but not the right to make new copies. A book is a good example – so the right to make copies is “scarce” and therefore has value. The market decides that value – if a million people will pay $1.00 for an ebook version, that’s worth a lot of money.
For those confused about innovation – remember that ONLY the innovation is compensated. The Beatles sang Buddy Holly songs – but if you want Buddy Holly, instead of their version, they don’t have a right to get paid. The value is in the addition only. Lord Kames would have benefit from over 200 years of development in practical development by economists and lawyers.