What's The Point - A Brief Introduction to the Theory of Copyright Law

Originally published on February 7, 2018 in Rangefinder Magazine

If you’re reading this at all, you probably know the power and importance of your copyrights. But do you know what a copyright is, where and when it came from, and why we have it at all?

First, what exactly is your copyright? Let’s say we’re talking about a painting. Is your copyright the right to control that painting, the physical piece of canvas covered in pigment, hung in a frame on a wall somewhere? No; your copyright over that painting is your right to control The Copy of the painting. But what is The Copy? 

This can get a little confusing, because The Copy is not any physical photograph, print, or other tangible copy of the painting, and The Copy doesn’t actually exist anywhere concrete. The Copy of your painting is not the painting itself, and it’s not photos or prints of that painting - those are just copies. Instead, The Copy exists only in your (and everyone else’s) mind; it is an abstract set of information. If there is one painting, and 99 prints of that painting, then The Copy of the painting is what all 100 tangible copies have in common. Never be fooled into thinking that your copyright controls any physical object; it doesn’t. Rather, it controls an abstract set of information that is manifested in a physical object.

Now, from some perspectives, it may not be entirely clear why anyone needs this right. After all, information - which is what The Copy is, remember - is free. If you have a book, and I read the book and write down exactly what it says, has your book been damaged? Have you lost any ability to read that book? No. The Copy of any copyrighted work is like a candle flame: one candle can light a potentially infinite number of other candles. So then who cares? Why should the author of a book care if ten thousand people read copies of his book, if it doesn’t cost him anything to let others make those copies? If you’re a creator of copyrighted works, you already know the answer, and artists and writers have been saying it since the Roman Empire - the Roman poet Martial complained in his Epigrams that he never made any money off his books, despite the fact that they were massively popular across all of Europe. Poets have to eat, too.

And that is the crux of why we have copyright. We want poets - and painters, and photographers, and authors, and everyone else who makes copyrightable work. Some (including myself) would even say that we need them, because art and learning helps us connect, grow, and form culture and identity. And yet what poets produce is, essentially, free; a poem does not need to be destroyed in order to be consumed. This is a paradox. We want creators to produce an essential product for us to consume, and yet we have no incentive (at least, no incentive within a free market environment) to pay them for what they produce. Thus, we invented copyright.

The history of the legal doctrines that gave rise to our modern concept of copyright law is convoluted and technical, but in essence, their purpose was to provide creators with an incentive to create (and to prevent everyone around creators, such as booksellers, printers, and editors, from making plenty of money off the physical copies while giving none to the creator of The Copy). The first law that we might recognize as a modern copyright law, the Statute of Anne, passed by English Parliament in 1710, was entitled “An Act for the Encouragement of Learning,” and in 1787 the writers of the United States Constitution incorporated into it the Copyright Clause, which states the purpose of copyright laws as being “To promote the Progress of Science and useful Arts.” It was understood by both the English Parliament and the Continental Congress that societies need people to devote themselves to learning and to their craft, whether that be philosophy, storytelling, painting, or anything else, and that in order to fulfill that need, those people need to be somehow compensated. That compensation comes in the form of The Copy. If you create a given set of information, and reduce it to a tangible manifestation, then (to some degree) you control every other tangible manifestation of that Copy.

This is, of course, a gross oversimplification of the complex development of copyright law, and it completely glosses over some of the other theories of why copyright should exist. For example, many would say that a creator’s right to their Copy arises not out of a practical need to make sure they get paid, but because a creator has a moral right to their work - when you write a book, for example, you pour your time, your thoughts, and your identity into a piece of writing that is utterly unique and will be forever connected to you, in the same way that your child, no matter where in the world they wander, will always be connected to their parent. In the 6th century A.D., the Irish High King Diarmait Mac Cerbhaill said in a dispute over a copy of an illuminated manuscript of nearly priceless value, “to every cow belongs her calf, and therefore to every book belongs its copy” - indicating that the person who wrote a book should have rights over any potential copies.

What’s more, the notion that the only incentive for creators to create is to make sure they get paid for it is a notion that is only necessary in a large-scale free market environment, such as the global economy we currently live within. Plenty of smaller cultures that operate in a gift economy, such as many of the First Peoples of North and South America, have produced copious amounts of staggering art and literature without the strict, legal incentive of a paycheck. Some might even say that the drive to create is innate, and not something that needs to be incentivized. Even in a world where no one made money off their art, do you imagine there would be no artists? It is unlikely. Art - expression, communication - is what makes us human. The Copy is merely what helps us, in our modern economy, get paid for it.