May 23, 2012

Do Authors Have a Moral Right to Profit?

I'd like to come back to this post again, talking about copyright and author's right to sales. Since it's been awhile, let's establish again that it's a response to a point from Kevin Drum:
I am, as always, speaking only for myself, but I think this is too cramped. The Constitution says that the purpose of patents and copyright is to "promote the Progress of Science and useful Arts," but the fact that the Constitution says this doesn't mean it's the only reason to grant patents and copyrights. There's another reason too: because creators have a moral right to profit from their works. In real life, pretty much everyone acts as if they believe this, and I suspect that for most of us it's the real underpinning of our support for IP law.
 To which I replied:
I don't think this works, though as a broke-ass writer I would much like it to be true. The act of writing, or making music, or whatever, is not an intrinsically worthy undertaking. Suppose I write some book and put it in a cabinet in my basement. Do I deserve to profit from that, simply from the act of creating it? If Hitler yet lived would he have a moral claim to monopoly rents from Mein Kampf? Does everyone who borrows a book from a friend, or checks one out from the library, have a moral obligation to pay the author? This is absurd.
Which, reading again, sounds pretty cringingly stupid. (Seriously, Hitler? WTF was that about? Another foot of dirt on the already-buried corpse of my potential political career.) Anyways, I've been kicking this around in my head and I can't quite come to a decision. Here's my thought process, maybe you can help me.

There are two ways to think about this. We could say that intellectual property is merely a byproduct of a system to incentivize the creation something socially desirable, in this case artistic works, and so getting paid for producing it is just a knob on the art-making machine. If people got no money for their efforts that would be fine so long as society got a decent quantity of artistic works. Or, like Kevin, we could say that intellectual property is more like property. When you sell your property, you deserve any money that's to be made off it, and people have no right to access your work without paying you first if that what you want.

We could compare this to owning land, but I don't think that analogy works. Land, actually, seems even more than IP to be a case of "knob on a machine," in this case the machine of the economy. It's a good thing to develop land (in some cases, anyway), and property rights are a good way to accomplish that. But land is an inherently scarce commodity, the value of which is largely derived from external factors like its location, political developments, or rent-seeking from the landowner. As people move into cities and we're unable to deal with skyrocketing rents, more and more it seems like we're heading towards a society where most of the economic surplus falls through to landowners, who do nothing save sit on property, like the feudal days of old. So let's alter the point, and compare IP to a single, non-land possession like a jacket.

I find this idea at least a little appealing. Artists are people who often pour their heart and soul into their work. Surely they deserve to profit in some way from the copy and use of their work; after all, they made it! On the other hand the way all artists (and innovators generally) do that work is through copying and remixing previously existing ideas and material, often quite blatantly. Without copying and borrowing, there would be no creativity.

So I don't think I can accept Kevin's premise in a strong form. First, it would clearly rule out a lot of preexisting content distribution, like libraries and borrowing. After all, strictly interpreted, every checkout from the library is depriving an author of potential revenue.

I think it can be salvaged though, by attaching some important qualifications. Yes, authors have a moral right to profit from sale of that work. But, because all new art is built on previously existing work, 1) authors and publishers have a moral responsibility to make that work available with a minimum of hassle and expense. Thus we can make a space for some limited free lending, like libraries or borrowing a friend's copy. Additionally, 2) artists are obligated return their work to the public domain in a reasonable amount of time (which at the minimum means the moment the creator is dead). Creative works are built from the collective culture, so artists have a moral responsibility to feed and nourish that culture. To the extent that artists or corporations are violating these amendments, then they lose their right to profit from their work. You're not morally entitled to profits from the collective commons if you're free-riding on everyone else's fertilizer.

In my ideal world, creative works would be available online easily (but not free, if that's what the author wants), while copyright terms would be limited to 30 years or the lifetime of the author, whichever is shorter, and there would be strong, broad, and well-defined exceptions for fair use of copyrighted work. What do you think?


  1. Interesting post. I was just thinking about this the other week, in light of the recent DOJ suit against Apple and gang for price-fixing.

    I'm a little uncomfortable thinking about IP as "a byproduct of a system to incentivize the creation of something socially desirable". The ancients had nothing like it as far as I'm aware and they gave us many of the greatest works humankind has ever created. Plus, the idea of needing to incentivize the creation of a moving work of art reduces life to a singular aim of maximizing personal profit.

    I wonder if the idea of an creator's exclusive right to his or her work can be salvaged without resorting to market logic; i.e. defaulting to thinking of any creative work as, on some level, an undifferentiated exchangeable commodity. What is the moral force that makes us take the author's right as a given intuitively, if not market logic?

    The fact that this topic gives one pause is evidence enough that there's an unresolved conflict at play. A moving poem is not the same as the latest iPhone. I've been meaning to pick up "What Money Can't Buy: The Moral Limits of Markets" by Michael J. Sandel which seems to deal with this topic.

  2. Copyright holders have a 'moral' right to profit because Queen Anne defined that morality when she granted the privilege we now call copyright in her Statute of 1709. Well, I wouldn't be so sure.

    No-one has a right to profit, nor even a right to be paid for their work. They only have a right to exchange their work for whatever price a free market will bear, i.e. for whatever one can convince people to provide in exchange.

    It depends if you want to talk about rights or privileges. Copyright is a privilege - the right to copy, annulled in the majority, to be left, by exclusion, in the hands of a few - copyright holders. Morality concerns rights, but not privileges. Privileges are generally immoral - instruments of injustice as Thomas Paine would say.


  3. I consider the question not quite valid, as profit is an economic structure and not necessarily a moral one. I think the moral question is on the shoulders of the reader. If the reader receives value from the work, they are morally responsible for rewarding the author. Economically, I believe the author should profit as they have put their time, education and other resources into their work. That said, I do agree with the majority of your last paragraph (the exception being the time limit on copyright - I think it should be the lifetime of the author or 30 years, whichever is longer).

    Also, I don't believe that all art is built on previously existing work. While most does, I do believe there is still original thought in the world (which is a whole new topic and one that I shall not address here). I also think that the art that does build on previously existing work may take a new tact or use the work so originally as to void the previous association. Whether any of this is true or not, I think that the moral responsibility is still upon the viewer of the work to reward the author in some fashion.

  4. "No-one has a right to profit, nor even a right to be paid for their work. They only have a right to exchange their work for whatever price a free market will bear, i.e. for whatever one can convince people to provide in exchange."

    Yeah, but I meant the question in a looser, kind of intuitive sense. Obviously no one is entitled to be paid for things no one wants to read, but this question is more about if piracy is morally wrong, and/or if we should clamp down on it.

    @LA Bourgeois: I like the point about readers having an obligation to pay, and that's the principle I formulated in my previous post. Maybe we can draw up some kind Bill of Rights and Responsibilities for readers and writers.