Comment by tossandthrow 2 days ago
The moral background for copyright is in free fall these days.
It is quickly turning into one of these things that there are laws for, and everyone thinks it is rediculous, it is never enforced and DE facto not a law.
And what a shame that is.
This is strongly jurisdiction-dependent.
US patent and copyright derive from A1S8C8 of the US constitution, "to promote science and useful arts".
Much EU law derives from a French tradition based on droight d'auteur, or moral rights.
International copyright code (Berne Convention) rips and mashes from both traditions.
I'd agree with this.
The point I was addressing was whether or not copyright is grounded in moral rights, and as my earlier response notes, it depends on jurisdiction and foundations.
That said, I've come to a general view that moralising of pathologies or other behaviours is often highly counterproductive. Medicine progressed little when illness, disease, or dysfunction were rationalised as will of gods or divine retribution. Germ theory and other causal etiologies broke that dam. Left-handedness was widely viewed as literally malevolent, a sign of the devil. Which did little to prevent the condition, and greatly hampered opportunities and life-paths of the roughly 10% of the population which is left handed. Oppression of LGBTQIX+ individuals is often presented as a similar situation. Mental health and illness still carry strong moralising-of-pathology overtones, though the situation's improving. Justice and penal systems are presented by some as another such case (see in particular Robert Sapolsky).
Back to copyright and patent: both foundations, authorial/inventor support and moral rights strike me as grossly flawed in both grounding and consequence.
Copyright has always been based on moral principles. 'Moral rights' have been part of copyright longer than "encourage innovation and hustle" has been something the government has considered worth promoting. The original copyright laws were about controlling who could print the bible, and the statute of anne was about encouraging learning while controlling what booksellers could and couldn't do. Copyright if anything was about preventing innovation from the very beginning, and slowing the hustle of culture down so that incumbents could edge out newcomers - a drama that has played out generation after generation
All abstract property rights are legal fiction. The notion that you can own, say, a piece of land that you have never even came close to, simply by virtue of a record in some registry somewhere; and, based on that ownership, then restrict the ability of others who actually do live next to it to enter it or otherwise use it, is rather absurd from a "natural right" perspective.
I should note that this isn't even some kind of hot new take. Here's what Thomas Jefferson had to say on the subject:
"It is a moot question whether the origin of any kind of property is derived from nature at all... It is agreed by those who have seriously considered the subject that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common is the property for the moment of him who occupies it; but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society."
"A right of property in moveable things is admitted before the establishment of government. A separate property in lands, not till after that establishment. The right to moveables is acknowledged by all the hordes of Indians surrounding us. Yet by no one of them has a separate property in lands been yielded to individuals. He who plants a field keeps possession till he has gathered the produce, after which one has as good a right as another to occupy it. Government must be established and laws provided, before lands can be separately appropriated, and their owner protected in his possession. Till then, the property is in the body of the nation, and they, or their chief as trustee, must grant them to individuals, and determine the conditions of the grant."
Just because it’s a fiction doesn’t meant it’s not effective in triggering human responses and proactive actions. In a broad sense, fiction is all we get as human minds, whether it’s representative representation of our actual embedding universe or not.
That would in fact be part of my argument.
Some fictions are readily dispensible. Most are not.
What they are not however is laws of nature, divine right or revelation, or immutable.
Limit on the law-of-nature bit: law is often a highly probable outcome of various power dynamics, political, economic, social, cultural, etc.
Beware claims to moral rights / superiority. They're often a thought-stopping wedge to badness.
Copyright in the sense of corporate greed is indeed an issue.
Whenever talk about that being a shame, I am thinking about the individual author who lost control over their work and still can not feed themselves.
It's worth noting that the moral background (at least in terms of political philosophy in the US) was always rooted in practicalities. The Constitution even includes the qualifier "promote the Progress of Science and useful Arts." The moment a protection works against those goals, it's on shaky ground. And that ground is always in flux; there's a reason Thomas Jefferson noted regarding patents that "other nations have thought that these monopolies produce more embarrasment than advantage to society."
This is why copyright is shot-through with exceptions (for example, we give broad leeway to infringement for educational purposes, for what benefit does society gain if protection of the intellectual property of this generation stunts the growth of creative faculties of the next?). And that's usually fine, until, say, a broadly-exceptioned process to gather and catalog art and expression worldwide available online that was fed into neural net training in academic settings for decades becomes something of a different moral quality when the only thing that's changed is instead of a grey-bearded professor overseeing the machine it's a grey-templed billionaire financier.
(I submit to the Grand Council of People Reading This Thread the possibility that one resolution to this apparent paradox is to consider that the actual moral stance is "It's not fair that someone might starve after working hard on a product of the mind while others benefit from their hard work," and that perhaps copyright is simply not the best tool to address that moral concern).
I don't have objections to the tool. My issues are with how much power we have assigned to that tool.
The right to claim renumeration for, and restrict use of, one's work should not IMO extend for multiple generations. I'm not sure it should even extend for one.
Copyright, and patents, are not based on moral principles. It's a temporary government license meant to encourage innovation and hustle. Whether it works or not, I don't know. But the only question of morality is if it's immoral to break an arbitrary law, or not.