The state has one primary purpose. It’s role is to prevent the control of some by others, and so to guard individual freedoms. Discerning the appropriate government role for most issues of violence, theft, international aggression and trade can be reconciled back to that foundational purpose.
That simple expression of the state’s primary purpose is not undermined if we should recognize honestly that some issues are obviously more complex.
Copyright law for example.
Taken too quickly, the libertarian commitment to laissez-faire capitalism might seem to resolve our current debates easily. Perhaps we’d expect to hear that since artists make something, they should be allowed total control of its use in perpetuity. Or we’d expect a permissive or supportive nod to entertainment corporations and their certain right to private property, and so also whatever new versions of copyright law they would like to buy from our political and judicial systems.
But the matter is not that simple.
The purpose of copyright law is to establish a fair balance of individual freedoms. We have the freedom to create. We have the freedom to hold and use private property. And we also have the freedom to use that which is not owned or ownable. We only reach the boundary of our freedoms when we presume to control how another person may freely create, possess or use, and it is precisely at that point that the reality and complexity of our present situation concerning copyright becomes apparent.
Technological advancements have made possible not only the creation of new kinds of cultural artifacts, artistic expressions, and media, but also the powerful ability for some to control how these artifacts are used by others over time. In tandem with the progressive redefinition of copyright law over the past two decades, we have permitted a severe imbalance of and infringement upon individual freedoms that will require a strong and courageous government hand to address.
Copyright law establishes a balance between the individual freedom of the creator of a cultural artifact and the expected later free use in the context of culture. It provides protection for a creator while others purchase the first copies of their creation, but reasonable time limits recognize the reality that another set of individual freedoms exist which demand protection. Those other individual freedoms are related to the notion of the ‘commons’.
The ‘commons’ refers to those things which cannot be owned by any one individual. Resources such as air, oceans, rivers, and perhaps even roads or parks. When considering the great cultural artifacts and expressions of human kind, we refer to the creative commons. The notion of the creative commons is based on the recognition that all creative acts happen in the context of culture, and so ultimately find their expression, longevity, and honour in that milieu. A person cannot claim that their creative acts, no matter how original they may be, have been created or exist in some kind of void apart from other individuals any more than a man who pees in a lake will be able to stand on the shore and identify the half litre of liquid that belongs to him. Even more ridiculous would be someone pretending he never drank from the lake in the first place then preventing others from drinking from the lake because he thinks his contribution means they are potentially drinking his water.
Over time, the artifacts and ideas that individuals create become part of the open and free conversations between other free individuals in the public square. That common space provides not only a market for new ideas, artifacts, and information, but is also the common resource which all artists and thinkers require and use: it is the sole basis for allusion, flattery and critique. For other individuals to be free to think and critique and create they must have free access to the cultural artifacts and ideas that populate the creative common public square. The notion of a creative commons is absolutely necessary in order to establish a balance between – and so to protect – the practical individual freedoms of the artists, thinkers and creators of yesterday, today and tomorrow. The firm time limits of copyright are the key means to that balance.
There is a tendency to interpret the ‘commons’ in collectivist terms, as an expression of that which is held or owned by all. This is a grievous error. It is that collectivist thinking which has diminished the potency of the notion of the commons. Collectivist thinking actually attributes ownership of the commons to some nebulous sense of the ‘masses’, some glorified ridiculous romantic collective ‘we’. This is one of the tragedies of the late 20th century. Not only does the collectivist approach inevitably dissolve the practical meaning of real ownership, but it also thoroughly undermines our sense of individual responsibility for that which is supposedly owned. The idea that some great voice of the glorious collective ‘we’ will shout out on our behalf tempts us, as individuals, to stay silent when we should cry out. While it appears to relieve individuals of the necessity of rising up and vociferously asserting their freedom, in practice, the glorious ‘we’ has no substance. Collectives are nothing more than individuals together; without individuals who act because of their own sense of responsibility, they are merely ideas devoid of substance – and so also power. It is indeed that lack of individual responsibility which has left us in this situation.
The question before us is not a debate between whether a cultural artifact is privately owned by an individual and whether some ‘we’ can take ownership at some future point in time. Rather we face the fact that once an individual’s created artifact or idea is poured out into the public square, it is only a matter of time before it ceases to be practically ownable by anyone at all. Ideas and information, over time, disperse into the sea of ideas that surround us. This means that, over time, the individual freedom for others to create and to use that which cannot properly be owned must also be protected.
Again, the claim is not that other individuals may suddenly appropriate another person’s property. The claim is that the ongoing ownership of something poured into the midst of public conversation must have reasonable limits. The creator, of course, has the option of withholding their artifact or idea and keeping it forever privately to themselves. Artists are always free to create without any obligation to share or display their work. But few ever do. As each creator acknowledges the heroes who have inspired their own joy and new thoughts, so also they desire to play that role for others. If not, they at least expect the world to give them money or even fame in exchange for their creativity. Either way, they make their work public because they want something. There is a cost for that want to be met. The cost is that successful ideas and artifacts ultimately transcend the notion of ownership altogether.
How long before the assimilation of an individuals idea, information, or artifact into culture takes place? The time limit needs to be realistic: not too soon, neither too long. The rule used to be 7 years, and then was renewable up to 28. More than a quarter century seems more than fair. Given that, the current practice of extending copyright beyond a century is an absurd excess. What individual could live that long and still require profit? Only corporations seek that kind of long term profit and financial gain without providing any actual service; why should anyone make money off of any idea or song created before they were born? What service is provided for that profit? Keeping a digital file? Citizens can do that themselves for free! Promoting and advertising that product? What company invests money in advertising and promoting hundred year old ideas? No, these practices are, of course, based on the expectation is that the creation is an asset that should make money for whoever ‘owns’ it for as long as possible. To permit that practice to continue for more than a century is a flagrant violation of the individual rights of others.
The practical reality in our culture is that after 3-5 years a popular idea or artifact is old. New technology and art have overtaken the creative ideas of 3 years ago. In a culture in which this pace of change and novelty is increasing along with the volume of creative works and ideas, the idea that copyright should be extended even longer is thoroughly crazed. To the contrary, 5 year copyrights renewable 4 or 5 times make more sense. They allow an individual 2 full decades to profit from their creative labours. A firm new principle: corporations are not entitled to expect further profits based not on new creativity which they have facilitated and promoted, but rather on the idle practice of buying new law and so moving the posts of copyright law further ahead into time. This vile corruption must be ended immediately.
Further, the technologies currently in use which are designed to limit the legitimate use of non-ownable artifacts and ideas beyond that 20 year mark violate the individual rights of all those who desire access to the creative common public square. Currently, there is a preferred idea that digital information should be marketed as a kind of term lease, so that it would eventually break down or terminate after a set date. This is contrary to the fair expectations of free individuals. Digital Rights Management (DRM) software should protect the copyright holder for the expected duration of the copyright, 20 years for example, and then it itself should become inactive leaving the ideas, information and artifact to be free for appropriate use. The dissemination of ideas and copies of created artifacts into culture means that they cease to be ownable over time – our copyright law and copyright technologies must reflect that truth. As well, equally priced product free of any protections must be developed and made available for immediate fair use prior to the end of the copyright term.
In line with this necessity, the idea of limiting technologies with firmware DRM is also an absolute and gross violation of individual freedoms. Ultimately the medium on which ideas and media are sold must permit copying, unless we are going to throw in the towel and admit that copyright is limitless insofar as time goes. And what about other legitimate fair uses? How can these be pursued if the hardware is unavailable or restricted? Not to mention that current DRM practices limit more than simple copyright issues. We are legally entitled by law to purchase, for example, DVD’s from other regions. We are legally entitled to purchase machines that will play DVD’s from other regions. But the current and proposed DRM firmware will stop that functionality. Who are they to infringe on the individual legal rights of others? All attempts at the technological level to limit legitimate free and fair use must be prevented and stopped.
By other fair uses above, I refer to the new Canadian law which is making space for news media and education to be free to use creative works. DRM technologies mean that what the law gives with the right hand, corporations are illegitimately taking with their left. The fact the courts are aware of these shady attempts at control, and posture in making policies that are in truth impotent, gives cause to question the degree to which current copyright laws are not expressions of principled governance and legal thoughtfulness, but are instead merely a sign that Canadian law can be bought at whim.
Let’s be clear that law which is purchased is no law, and accordingly citizens will soon consider themselves absolved from attending to her statutes. Individual freedoms are not given by the state or courts – they pre-exist them. The role of the state and her court is to protect that which already is, and if the law fails to do that, then citizens will cease to obey that law. It is true that piracy is a symptom of a lack of respect for the law. But that risks misstating the real problem. Piracy today is perhaps more a measure of the degree to which individual citizens consider the law not worthy of being obeyed. And again, as long as the law fails to protect individual freedoms, as long as it permits ridiculous redefinitions of what it means to buy a product, and as long as it appears to be the subject to the influence of money, corporate power, and other out-of-line influence, individual citizens’ respect for the law will continue to diminish.
It is worth commenting that the rights of individual educators and journalists are not the only ones that require protection. The new Canadian law fails to take into account the pre-existent role of the pulpit in segments of our culture. Historically, the pulpit has been at the centre of critiquing culture. The civil rights movement, for example, started in the pulpit. Today, the pulpit is no less significant as a muti-media means of communication and critique. As such, it must be included under fair use provisions.
The Christian Libertarian is no advocate of anarchy or theft. But, as a plea for the protection of the individual freedoms God has given to every citizen of this world, and due to the fact that we live in a creative common conversation where individual ideas are sown and blossom and feed beyond the range of our own lifetimes, we are right to expect the government adhere to its primary function and so craft law accordingly.
With thanks to Andy, whose mind always inspires and challenges me.