This is my analysis and response to Thomas Babington Macaulay's speech to the House of Commons, delivered on the 5th of February 1841, opposing the then proposed "Life + 60 Years" copyright term.
First I should state that I also oppose any extension to the copyright term, but moreover I oppose copyright in general, and seek its total abolition.
Macaulay's speech is good overall, inspired in places and clearly well-intentioned, but makes what I believe to be a fundamental logical fallacy which must be addressed. He also tends to waffle, giving far more examples than is necessary, most of which I've edited out. Therefore the following comprises a summary of the relevant parts of the original speech to which I wish to respond, and my indented responses (in blue) to each point. With the exception of Macaulay's final summary, I will only respond to those points I disagree with, so you may assume that I agree with the rest.
My objective is to demonstrate that copyright is not only morally indefensible, but also quite unnecessary.
NB: I've defaulted to using the male gender type for literary purposes, however I am in fact referring to mankind rather than just men.
Though, Sir, it is in some sense agreeable to approach a subject with which political animosities have nothing to do, I offer myself to your notice with some reluctance. It is painful to me to take a course which may possibly be misunderstood or misrepresented as unfriendly to the interests of literature and literary men. It is painful to me, I will add, to oppose my honourable and learned friend on a question which he has taken up from the purest motives, and which he regards with a parental interest. These feelings have hitherto kept me silent when the law of copyright has been under discussion. But as I am, on full consideration, satisfied that the measure before us will, if adopted, inflict grievous injury on the public, without conferring any compensating advantage on men of letters, I think it my duty to avow that opinion and to defend it.
The first thing to be done, Sir, is to settle on what principles the question is to be argued. Are we free to legislate for the public good, or are we not? Is this a question of expediency, or is it a question of right? Many of those who have written and petitioned against the existing state of things treat the question as one of right. The law of nature, according to them, gives to every man a sacred and indefeasible property in his own ideas, in the fruits of his own reason and imagination.
This is where I must voice my first objection. A man's ideas are only "his own" when they're private. The point at which they are no longer private (i.e. published), they can no longer be his exclusively. To claim otherwise is to claim rights over the minds of other men, which is no different than claiming the "right" of slavery.
Even more fundamentally, while I strongly believe that every man has the right to privacy, the idea that his thoughts amount to "property" is insupportable, given that we are all born completely ignorant, and that the entirety of our knowledge must therefore come from elsewhere. The nature of ideas is therefore accretive and collective, and so cannot rightfully be claimed to be any one man's exclusive property.
The legislature has indeed the power to take away this property, just as it has the power to pass an act of attainder for cutting off an innocent man's head without a trial. But, as such an act of attainder would be legal murder, so would an act invading the right of an author to his copy be, according to these gentlemen, legal robbery.
This is an early example of the act of copying being stigmatised as "theft", a clearly ridiculous notion that ignores the obvious fact that a copy does not deprive the author of his original (or in legal terms: he retains title in both equity and law), and thus defies both the definition and consequence of theft.
Now, Sir, if this be so, let justice be done, cost what it may. I am not prepared, like my honourable and learned friend, to agree to a compromise between right and expediency, and to commit an injustice for the public convenience. But I must say, that his theory soars far beyond the reach of my faculties. It is not necessary to go, on the present occasion, into a metaphysical inquiry about the origin of the right of property;
On the contrary, I'd argue that it's absolutely crucial, as it determines whether copyright should be legally supported in the first place.
So let's discuss the idea of property itself. Property begins with possession, and thereafter the assumption of ownership. The moral entitlement to this ownership depends entirely upon whether there was any previous owner, and if so then whether that owner authorised the transfer of ownership to the current possessor. This in turn depends upon the former possessor's legitimate right of ownership, otherwise he has no right to transfer ownership of that which he does not legitimately own himself, and so on.
Each transfer of ownership is a transaction, and the only way to verify the provenance of the property being transferred is to have a complete record of those transactions, otherwise one cannot claim to be the legitimate owner nor have any rights to further transfer ownership.
Such provenance is only possible with real property, which is to say tangible objects that can only exist in one place at a time, and therefore can be owned, a condition that absolutely requires each article to be wholly unique and distinct from any other.
But ethereal things like a specific article of knowledge can exist, be transferred and even be created in many different places simultaneously, making it impossible for it to be owned in any legitimate or even logical sense, and moreover the transfer of knowledge is, unlike real property, rarely documented, and thus has no verifiable provenance.
To describe the end result of all this undocumented and concurrent ethereal activity as "property" is therefore insupportable. At best it's a grasping aspiration based on opportunism and wishful thinking, in the absence of any challenges to ownership, and at worst it's an outright lie. Indeed even in the best case scenario the claim is a lie, because the accretive nature of knowledge is such that all supposed intellectual creations are merely derivatives of those that came before. Even an idea that is "mostly unique" cannot be entirely so, but the end result is nonetheless claimed as exclusive property, even though this "property" unavoidably encompasses at least some derivative elements.
Should a builder be legitimately entitled to claim ownership of a house made from stolen bricks, just because the proportion of stolen bricks is small?
And again, that's the best case scenario, because in reality the actual proportion of "stolen bricks" is likely to be very high indeed. True originality is extremely rare, and never without foundations built by others.
and certainly nothing but the strongest necessity would lead me to discuss a subject so likely to be distasteful to the House. I agree, I own, with Paley in thinking that property is the creature of the law, and that the law which creates property can be defended only on this ground, that it is a law beneficial to mankind. But it is unnecessary to debate that point. For, even if I believed in a natural right of property, independent of utility and anterior to legislation, I should still deny that this right could survive the original proprietor. Few, I apprehend, even of those who have studied in the most mystical and sentimental schools of moral philosophy, will be disposed to maintain that there is a natural law of succession older and of higher authority than any human code. If there be, it is quite certain that we have abuses to reform much more serious than any connected with the question of copyright. For this natural law can be only one; and the modes of succession in the Queen's dominions are twenty. To go no further than England, land generally descends to the eldest son.
Macaulay then discusses at length the right of inheritance, which is irrelevant to my argument, since I dispute the right to own knowledge in the first place. The fact of this dubious "property" being bequeathed to an inheritor does not somehow make it legitimate.
We may now, therefore, I think, descend from these high regions, where we are in danger of being lost in the clouds, to firm ground and clear light. Let us look at this question like legislators, and after fairly balancing conveniences and inconveniences, pronounce between the existing law of copyright, and the law now proposed to us. The question of copyright, Sir, like most questions of civil prudence, is neither black nor white, but grey. The system of copyright has great advantages and great disadvantages;
I'd argue that there are in fact no advantages, except in the sense that a monopolist selfishly benefits from his monopoly, to everyone else's detriment.
and it is our business to ascertain what these are, and then to make an arrangement under which the advantages may be as far as possible secured, and the disadvantages as far as possible excluded. The charge which I bring against my honourable and learned friend's bill is this, that it leaves the advantages nearly what they are at present, and increases the disadvantages at least fourfold.
The advantages arising from a system of copyright are obvious. It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated; and the least objectionable way of remunerating them is by means of copyright.
The above statement is based upon several demonstrably false assumptions. First, the assumption that only copyrighted works qualify as "good", or that only copyright can facilitate "good" books, is utter nonsense, and is easily dismissed by consideration of the vast number of literary masterpieces which preceded the introduction of copyrights, many of which are regarded as being among the greatest of all classic literature, including the works of William Shakespeare, for example.
Secondly, although there is no question that everyone in civilised society needs money to survive, and is morally entitled to payment for contractually agreed labour, there is no moral entitlement to payment for unsolicited labour, nor any moral obligation to pay for this unsolicited labour. If I choose to work all day in my garden, that does not somehow mean I have the right to be paid for it, even if it's of the most strenuous and skillful sort of work and the results are outstanding. Similarly if I unilaterally chose to do that work in a public park, without prior-agreement from the public, the public would not be morally obligated to compensate me for it. Individual members of the public might choose to make a voluntary donation in appreciation of my work, but a voluntary donation is an altruistic gesture of purely subjective encouragement (i.e. a tip), not a moral obligation.
But at this point Macaulay is not discussing obligation, he's expressing what he presumes to be the public "desire". Whereas his assumption that the public desires "good" books may be perfectly reasonable, the idea that the only way to achieve that goal is by legally mandating what would otherwise be voluntary donations is not, and is certainly no reflection of what the public actually "desires". The evidence for this lies in a cursory examination of so-called "piracy" rates, which in some cases are as high as 95%.
Clearly copyright is only marginally effective in achieving its actual goal of securing payment, which therefore brings its practical benefit into question. Apparently the public don't appreciate this "professional" work nearly as much as the law thinks they ought to, so one must question the true value of this work to begin with, and with it the merit of the law that attempts to protects it. After all, if the public actually desired this work, surely they'd be motivated to pay for it, if for no other reason than to be sure the respective artists continue creating it. And surely the public cannot be unaware of the inevitable consequence of withholding payment from those who are only motivated by money, so it seems they not only have little desire for this work in the first place, but are in fact consciously choosing to discourage it.
On the other hand, there are other examples of artists who only solicit voluntary payment for their unsolicited labour, and yet are met with a far greater degree of generosity than those who demand payment and try to enforce it by law. The reason for this is no mystery, it's simply the public's desire to reward those who genuinely deserve it, with payments they can actually afford, as and when those payments are truly warranted, in a demonstration of appreciation and encouragement.
Furthermore, the idea that authors must be "liberally" remunerated in order to procure "good" books is pure conjecture. There's nothing to suggest that a rich author is more predisposed to create worthy literature than one of modest means, and again a cursory examination of literary history would seem to disprove that theory quite conclusively. Quite the contrary, in fact. What vacuous sort of literature is only inspired by the promise of great wealth? Surely a true artist is only inspired by the art itself, and money is only a dispassionate matter of necessity, which may be satisfied by various means unrelated to his art, and need not be "liberal" in stature.
So Macaulay has presented a false dichotomy, then suggests we choose the "least objectionable" option, when in fact neither option is necessary. Indeed all available evidence would seem to suggest that the sort of works primarily motivated by monopoly-enforced profit are the least worthy, least desirable and least financially appreciated.
You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men for works which require deep meditation and long research. Works of that kind you can expect only from persons who make literature the business of their lives.
Again, this is pure conjecture. While it's true that a working man who writes in his spare time may lack the opportunity to create a large body of work, that doesn't mean the quality of that work will be any worse than someone who can devote all his time to it, and surely quality is more important than quantity in such a qualitative undertaking as art.
Also note that, once again, Macaulay assumes that making a living from writing absolutely requires copyright, when we know as a matter of historical fact that there were professional writers before the enactment of copyright law.
Of these persons few will be found among the rich and the noble. The rich and the noble are not impelled to intellectual exertion by necessity. They may be impelled to intellectual exertion by the desire of distinguishing themselves, or by the desire of benefiting the community. But it is generally within these walls that they seek to signalise themselves and to serve their fellow-creatures. Both their ambition and their public spirit, in a country like this, naturally take a political turn. It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.
Again Macaulay restates the demonstrably false dichotomy that the only way to procure "good" books is by one means or another of guaranteed payment, and that an artist's only motive is money, when in fact it's more likely that a true artist's motive is the art itself, and that there are many ways for artists to make a living, including earning money with their art, even in the total absence of copyright restrictions. We know this as a matter of both historical and current fact.
There have been times in which men of letters looked, not to the public, but to the government, or to a few great men, for the reward of their exertions. It was thus in the time of Maecenas and Pollio at Rome, of the Medici at Florence, of Louis the Fourteenth in France, of Lord Halifax and Lord Oxford in this country. Now, Sir, I well know that there are cases in which it is fit and graceful, nay, in which it is a sacred duty to reward the merits or to relieve the distresses of men of genius by the exercise of this species of liberality. But these cases are exceptions. I can conceive no system more fatal to the integrity and independence of literary men than one under which they should be taught to look for their daily bread to the favour of ministers and nobles. I can conceive no system more certain to turn those minds which are formed by nature to be the blessings and ornaments of our species into public scandals and pests.
Certainly that's true, but it's a straw man argument, because it isn't universally true. Again I direct you to the works of William Shakespeare, a professional and well remunerated writer under the patronage of Queen Elizabeth I, the Earl of Southampton and many others, who wrote some of the most devastating critiques of the aristocracy, including his own patrons.
But this is quite beside the point, since patronage is not the only alternative to copyright, even if it were always bound to exclude impartiality, which it clearly isn't.
We have, then, only one resource left. We must betake ourselves to copyright, be the inconveniences of copyright what they may. Those inconveniences, in truth, are neither few nor small. Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. My honourable and learned friend talks very contemptuously of those who are led away by the theory that monopoly makes things dear. That monopoly makes things dear is certainly a theory, as all the great truths which have been established by the experience of all ages and nations, and which are taken for granted in all reasonings, may be said to be theories. It is a theory in the same sense in which it is a theory that day and night follow each other, that lead is heavier than water, that bread nourishes, that arsenic poisons, that alcohol intoxicates. If, as my honourable and learned friend seems to think, the whole world is in the wrong on this point, if the real effect of monopoly is to make articles good and cheap, why does he stop short in his career of change? Why does he limit the operation of so salutary a principle to sixty years? Why does he consent to anything short of a perpetuity? He told us that in consenting to anything short of a perpetuity he was making a compromise between extreme right and expediency. But if his opinion about monopoly be correct, extreme right and expediency would coincide. Or rather, why should we not restore the monopoly of the East India trade to the East India Company? Why should we not revive all those old monopolies which, in Elizabeth's reign, galled our fathers so severely that, maddened by intolerable wrong, they opposed to their sovereign a resistance before which her haughty spirit quailed for the first and for the last time? Was it the cheapness and excellence of commodities that then so violently stirred the indignation of the English people? I believe, Sir, that I may with safety take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honourable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Company's monopoly of tea, or by Lord Essex's monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.
This brilliant criticism of monopoly is spoiled only by the false assertion that it's a necessary evil, but clearly it isn't, it's merely a misguided convenience with no actual benefit to anyone except the monopolist, and even then only a marginal benefit at best.
Now, I will not affirm that the existing law is perfect,
This gambit sounds hauntingly familiar.
that it exactly hits the point at which the monopoly ought to cease; but this I confidently say, that the existing law is very much nearer that point than the law proposed by my honourable and learned friend. For consider this; the evil effects of the monopoly are proportioned to the length of its duration.
The rest of Macaulay's argument only concerns the acceptable length of the copyright term, in which I have no interest, because as far as I'm concerned monopolising the Commons for even a single day is one day too long. To debate the term of copyright is like debating how many purses it's acceptable for a thief to snatch before declaring an injustice. The injustice occurs upon the first violation, not only upon a large number of them.
However, Macaulay's remaining arguments are interesting nonetheless, because they expose the futility, hypocrisy and reprehensibility of copyright, irrespective of the copyright term.
The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures. I admit, however, the necessity of giving a bounty to genius and learning. In order to give such a bounty, I willingly submit even to this severe and burdensome tax. Nay, I am ready to increase the tax, if it can be shown that by so doing I should proportionally increase the bounty. My complaint is, that my honourable and learned friend doubles, triples, quadruples, the tax, and makes scarcely any perceptible addition to the bounty.
My honourable and learned friend dwells on the claims of the posterity of great writers. Undoubtedly, Sir, it would be very pleasing to see a descendant of Shakespeare living in opulence on the fruits of his great ancestor's genius. A house maintained in splendour by such a patrimony would be a more interesting and striking object than Blenheim is to us, or than Strathfieldsaye will be to our children. But, unhappily, it is scarcely possible that, under any system, such a thing can come to pass. My honourable and learned friend does not propose that copyright shall descend to the eldest son, or shall be bound up by irrecoverable entail. It is to be merely personal property. It is therefore highly improbable that it will descend during sixty years or half that term from parent to child. The chance is that more people than one will have an interest in it. They will in all probability sell it and divide the proceeds. The price which a bookseller will give for it will bear no proportion to the sum which he will afterwards draw from the public, if his speculation proves successful. He will give little, if anything, more for a term of sixty years than for a term of thirty or five and twenty. The present value of a distant advantage is always small; but when there is great room to doubt whether a distant advantage will be any advantage at all, the present value sink to almost nothing.
Milton's works are under a monopoly. Milton's granddaughter is starving. The reader is pillaged; but the writer's family is not enriched. Society is taxed doubly. It has to give an exorbitant price for the poems; and it has at the same time to give alms to the only surviving descendant of the poet.
I am so sensible, Sir, of the kindness with which the House has listened to me, that I will not detain you longer. I will only say this, that if the measure before us should pass, and should produce one-tenth part of the evil which it is calculated to produce, and which I fully expect it to produce, there will soon be a remedy, though of a very objectionable kind. Just as the absurd acts which prohibited the sale of game were virtually repealed by the poacher, just as many absurd revenue acts have been virtually repealed by the smuggler, so will this law be virtually repealed by piratical booksellers. At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot.
I rest my case.