Copyright is Censorship

May 01 2007 Published by under Intellectual Property

Provocative title, eh? I expect many people to instinctively react as angrily to this as I do to the empty clause "intellectual property is property". However, the clause "copyright is censorship" is actually true.

What is copyright? It is a law passed by and enforced by governments that places restrictions on what you can say in public or what you can publish. It is a limitation on the freedom of expression.

In what way is that not censorship?

(I intend that as a rhetorical question. However, if you want to answer it, please try to come up with something better than "copyright is good, but censorship is bad." As I argued before, saying "intellectual property is property" is at best an oversimplification that obscures the issues, and doesn't really make sense when examined. "Copyright is censorship" is much more straightforward, and is pretty plainly true by the definition of the terms.)

Does this mean that I think that we should do away with all copyright in a free society? No, and I'll talk more about that in a moment. But in framing the debate, I think it very important that we keep in mind the simple fact that copyright represents a limit on the freedom of expression.

Before that, though, I want to briefly address one other issue. Many see copyright as a moral right. In this view, authors have the moral right, above and beyond any economic need, to control the use and distribution of their own creations. And I can understand this, and see the arguments for it. I wrote it, it is the fruit of my labors, I should be able to have some sort of control over what happens with it. However, this "moral right" is fundamentally at odds with the rights of freedom of expression, which are much more basic and important to a free society. My moral right to control what I've written is trumped by your moral right to freedom of expression.

In my view, the only role that copyright serves in a free society is the role that is outlined in the US Constitution: an economic incentive to promote the progress of the useful arts and sciences. In short, we as a society value what writers, artists, and performers create, and we want to ensure that they are able to keep creating it. For the good of society, we want the best of them to be able to make a living doing what they are doing, because without that we would not have the fruits of their labors. As such, we agree to sacrifice some limited portion of our freedom of expression in order to provide an incentive for creators to create.

This is the key point of the debate which is obfuscated by those who present copyright as a moral right, by those who talk about "intellectual property" in terms of private property rights. It is a sacrifice of our freedom of expression that we agree to because we value the results of that sacrifice.

When placed in those terms, it becomes much more clear that copyright should be as long as needed in order to provide the incentive for creators to create what we value, but absolutely no longer. Freedom of expression is fundamental to the society we live in, and we should not be limiting it without a damn good reason.

Current terms on copyright are absurd, and recent trends suggest that they will only be getting longer. Writers do not need to maintain exclusive rights for their writings for their entire life, plus another 50-75 years after their death, in order to make a living writing! The only possible justification for that kind of copyright term is if you view copyright as a moral right. That view is not supported by the US Constitution, and as I've argued, is at odds with the values of a free society.

How long is "long enough?" That's not an easy question. Some will point to long-term royalties and argue that as long as they could be making more money, they should be able to. That's an argument for lifetime copyrights. I would argue back: why should you be able to make money forever on your writing? Is it really worth sacrificing freedom of expression for that long for your own personal gain? Hell, I'd love it if every student I had in a class had to pay me some fraction of their paycheck for the rest of their lives, on the basis that my class was part of the education that allowed them to get the jobs that they have. But that's obviously absurd. So too, would I argue, it is absurd for creators to claim that they should forever have the right to get royalties on work that they have written.

Copyright needs to be long enough for writers to be able to make a reasonable living at it. Exactly how long "long enough" is probably depends on the medium. For software, if you haven't made your money back in 10 (or even 3) years, you almost certainly never will. For a novel, it is certainly longer. I would think that a blanket 15-year copyright term, renewable once for a second 15-year term, should easily be more than sufficient for everybody who makes a living right now creating to be able to keep creating. Sure, Disney won't be able to make as much re-releasing and re-selling their DVDs for all time... but in what way is allowing them to continue reaping profits from old works promoting literature, providing an incentive for the further production of creative works?

You can dicker forever about the specific terms that are proper. But we will forever be stuck with absurdly long copyright terms as long as we view copy"right" as a right. If we wake up to the fact that copyright is a sacrifice of our freedom of expression that we agree to because we value the rewards of that sacrifice, the debate would be refocused in a much more reasonable direction. Just how much must we sacrifice to get what we value?

33 responses so far

  • C. Taylor says:

    So far, I can find nothing I disagree with in this post.
    You have my apologies for my previous suspicions of where you were taking this debate. I'm anxiously awaiting to see how this turns out.

  • Scott Belyea says:

    Provocative title, eh?

    Naaahh ... just silly. Sort of like ...

    It is a limitation on the freedom of expression.

    Not so. Your copyright on something you created puts no limitation on my freedom of expression at all. In fact, the notion of me taking your words in order to "freely express myself" is silly on the face of it.
    It seems to me that copyright is axiomatically not censorship. The words are already out there ... where's the censorship?
    I suggest that you're taking the notion of "censorship" too far. If I'm subject to legal sanctions for writing something in the same words that someone else has already written and which are available, there may be various ways to describe that sanction, but I don't see that censorship is legitimately one of them.
    I'm no expert, but from what I've read, there seems little doubt that copyright laws need some serious revision. However, it seems to me that your approach is pretty fuzzy and is unlikely to add much of value to the debate.

  • noself says:

    I would have thought that removing the economic rationale of copyrights and focusing primarily in terms of Civil Law tradition of moral rights (or a more nebulous moral right of a creator) makes it more likely that Freedom of Expression trumps copyright.
    After all, copyright is an exception to the publication of truthful information since the US Supreme Court threw out first amendment defense of a TV station broadcasting the entire act of a human canonball on the basis that it hurt his economic exploitation of the act.

  • Dave Munger says:

    The words are already out there ... where's the censorship?
    The words are only "out there" to the extent that their copyright holder permits them to be. If I want to "express myself" by putting the text of Martin Luther King's "I Have A Dream" speech on my blog, my freedom will most certainly be restricted, by his heirs.
    If there were no "fair use" provision, which arguably wouldn't be a part of a rigorous copyright law, then I couldn't quote even a sentence from Mein Kampf to show how misguided Hitler is. He alone would control that expression, and dissent would be banned.
    If that ain't censorship, I don't know what is.

  • If I want to "express myself" by putting the text of Martin Luther King's "I Have A Dream" speech on my blog, my freedom will most certainly be restricted, by his heirs.
    Since most of the last part of the "I Have A Dream" speech was copied from an earlier speech given by Archibald Carey at the 1952 Republican Convention, I'd love to see this go to trial.

  • writerdd says:

    Great post, and I agree.

  • Donna says:

    Gerard, isn't it funny how people steal stuff and they claim copyright?
    I wrote a knitting book called "The Knitted Rug" a few years ago. I asked Judi Boisson, a designer, if I could include a photo of one of the knitted rugs she sells retail in my book as an example. She said "No, because my designs are copyrighted and you are writing a how-to book." But the joke was, her design was an EXACT knock off of an antique Amish rug that I'd seen photographed in a 1970s art book. What a crock.

  • Dave Munger says:

    And of course, neither of Carey nor King was the originator of most of the questionable materials. From Wikipedia:
    Portions of many of King's speeches were borrowed from other preachers, both fellow African Americans and white radio evangelists.[citation needed] Perhaps most notably, the closing passage from King's famous "I Have a Dream" speech partially resembles Archibald Carey, Sr.'s address to the 1952 Republican National Convention.[citation needed] The similarity is that both speeches end with a recitation of the first verse of Samuel Francis Smith's popular patriotic hymn "America" (My Country

  • Whatever says:

    It wasn't exactly copied from Carey's speech, some of the ideas and themes are the same, but thats about it. Snopes explains it better than I do.
    http://www.snopes.com/inboxer/outrage/mlking.asp

  • Scott Belyea says:

    Dave Munger:

    The words are only "out there" to the extent that their copyright holder permits them to be.

    You twist the point, Dave. Obviously, the words are "out there" ... otherwise, where did you get them from?
    My point is not that copyright is perfect or anything close to it. It's simply that muddleheaded references to "censorship" and "freedom of expression" add little or nothing to the very real debate.

  • Rob Knop says:

    Not so. Your copyright on something you created puts no limitation on my freedom of expression at all. In fact, the notion of me taking your words in order to "freely express myself" is silly on the face of it.
    There are things you are not allowed to say. How can you, with a straight face, say that that is not a limit on the freedom of speech?
    -Rob

  • Scott Belyea says:

    There are things you are not allowed to say. How can you, with a straight face, say that that is not a limit on the freedom of speech?
    -Rob

    Very simply. "Limit on the freedom of speech" says that nobody is allowed to say it. To bring that into a copyright discussion is silly ... the whole point of copyright is that someone has already said it.
    They're simply two distinct issues as far as I can see ...

  • Rob Knop says:

    So freedom of speech is freedom for some people to say some things? You want to live in a scary and restrictive society, if so! "You can't criticize the government, because it's not your role. Somebody else has already done that, so you don't get to do it now." That's not copyright, but that is what you're talking about somebody's said it, so it's still, by your definition, "freedom of speech" even if nobody else is allowed to say it thereafter.
    I don't recognize what you are talking about as something worthy of the name "freedom of speech."
    I can not legally write and publish a book about Harry Potter and Hermione Granger. This is a limitation on my freedom to publish stuff, there's simply no two ways around it. I argue that it is, within reason, a necessary limit, but a limit it is. If you don't see that, then you've been blinded by common perceptions of copyright.
    -Rob

  • Scott Belyea says:

    "You can't criticize the government, because it's not your role. Somebody else has already done that, so you don't get to do it now."

    Come on, Rob .... you've gone beyond silly into completely bonkers. You can make exactly the same point ... all that copyright does is limit your "freedom" to poach someone else's word rather than have the integrity to express it in your own words!

  • Rob Knop says:

    all that copyright does is limit your "freedom" to poach someone else's word
    Yes, exactly.
    That is a limitation on your freedom of speech. There are things you can't say legally. Maybe they are things you don't want to say, and maybe they are things you don't think other people should be saying, but one thing about freedom of speech is that it includes the freedom for other people to say things that you don't like.
    It is a limit on the freedom of speech.
    You don't like that because "limits on freedom of speech" is bad, but you also think that "poaching somebody else's expression" is bad... so you hate to admit that stopping the latter is the former. But that is, very straightforwardly and simply, what it is.
    I don't get why it's so hard for you to admit that.
    -Rob

  • Bill says:

    How can you, with a straight face, say that that is not a limit on the freedom of speech?
    Surely you know the "yelling fire in a crowded theatre" argument? Limits on free speech are not always and inevitably censorship.
    Further, you are passing by what I see as the essential point of copyright (and one which, unfortunately, is increasingly weakened by lobbies like Disney's) -- it's a temporary monopoly.
    Saying "you cannot copy my work, at least as long as my copyright lasts" is not censorship. Reasonable people can disagree about how long the monopoly should last, and about how vigorously it should be enforced (see, for instance DM's wikipedia info about "voice merging" and similar traditions). I don't think that equating copyright directly with censorship is reasonable though.
    (P.S. Rob, check your spam filter? I left a comment on the "copyright and scientific papers" post but it hasn't appeared.)

  • Rob Knop says:

    Saying "you cannot copy my work, at least as long as my copyright lasts" is not censorship.
    Why not? It's temporary censorship, but censorship it is.
    And I do argue very strongly in favor of the temporary above!
    -Rob

  • Markk says:

    Wow, the fact that anyone can argue that Copyright law is not censorship shows how way off things have become. It is not BAD censorship. Censorship is the government putting restrictions on what I am able to publicly say, or conditions on my saying it.
    I cannot publicly write a story about Mickey Mouse and Donald Duck and distribute it. The government will stop me if Disney asks (*). Nothing in the story would ever have been written before except the names of the characters. That is censorship of "original" material that has never been written before. I cannot base a work on another work that is close enough that it falls under "derivative work" regulation without permission. Again that is censorship. As a society we made this decision because we felt it would be more socially beneficial to have this artificial rule than not. In general I agree, but it is definitely censorship.
    There is no fundamental right here. Other societies have in the past allowed and even encouraged people to reuse, even without attribution, others creations either repeating them or adding their own contribution. It could happen again.
    (*) the fact that Disney must ask doesn't mean that it isn't the government enforcing its law. It would be a court order not a Disney order telling me to stop.

  • Bill says:

    Not every restriction of expression is censorship. "You can't yell "fire" in a crowded theatre" is not censorship. Your right to self-expression ends precisely where it impinges on the equally important rights of others; enforcing that end is not censorship. Similarly, "We have laws that grant a limited monopoly on creative works in order to stimulate the production of such works; you can't break those laws" is not censorship.
    Disney's a good example of where the laws in question fall down: so long after their creation, with so much money already funnelled through them into DisneyCorp, and with Walt himself long dead, you should certainly be allowed to write Mickey/Donald fanfic if you want to. That you cannot is a result of a powerful corporation's lobbying to extend a temporary monopoly into a permanent one -- but it's still not censorship, and wailing that it is only clouds the issue.

  • "That you cannot is a result of a powerful corporation's lobbying to extend a temporary monopoly into a permanent one -- but it's still not censorship, and wailing that it is only clouds the issue."
    Just for clarification, how is censorship being defined here? It would seem that several people commenting here are assuming that only their idea of an unjustified broach on expression constitutes censorship. What exactly is the definition?
    I will concede out the door that not all limitations on expression are unnecessary. But it would seem to me that the quoted example is a particularly egregious case of abuse and would amount to censorship.

  • Anonymous says:

    In my view, the only role that copyright serves in a free society is the role that is outlined in the US Constitution: an economic incentive to promote the progress of the useful arts and sciences.

    I think that may be an euphemism on two planes.
    First, the reason people has always traded in art and sciences isn't to promote them but simply to make money. (Or "expand the economy to other markets" in another euphemism.) And incidentally improve society along the way, to the amount art, science and capitalism are beneficial.
    Second, it is regulated because the alternative was probably too messy, perhaps with an abundance of theft and copy theft.
    Now, I think new outlets and copyleft has a possibility for being both better for science (faster, gets rid of doubled and partly conflicting protection) and for the markets (leaner, less overhead).
    So I hope the earlier regulation will be pared down. (Which, incidentally, probably benefit the regulatory processes as well, by paring them down a bit. Perhaps everyone will benefit. :-o)

  • "First, the reason people has always traded in art and sciences isn't to promote them but simply to make money."
    True, but the interests of individual artists vis a vis the public domain is the issue when it comes to copyright. Copyright is a policy similar to school vouchers in that it's a centralized, state-run program intended to foster quasi-market like behavior.
    And indeed, copyright is itself redistributive, as it entails that those selling tangible property to others still have the right, after transferring ownership, to control that property.
    Thus IP law, insofar as it is a state-conferred monopoly privilege should only be in place insofar as it promotes a social benefit. When it doesn't do that, it becomes little more than a protection racket.

  • Dave Munger says:

    "You can't yell "fire" in a crowded theatre" is not censorship.
    Hell, yeah, that's censorship. That's exactly what censorship is. Is that sort of censorship justified? Certainly, just as it's appropriate to censor soldiers' email home from the field to make sure they're not giving away secret information to the enemy. My right to safety trumps my neighbor's right to say whatever she wants, whenever she wants.
    My point is not that copyright is perfect or anything close to it. It's simply that muddleheaded references to "censorship" and "freedom of expression" add little or nothing to the very real debate.
    Agreed, but Rob's primary point here is that the phrase "intellectual property is property" is just that sort of reference -- though false. At least "copyright is censorship" is a true statement.

  • Caledonian says:

    You can yell 'Fire!' in a crowded theater. But if there isn't a fire, you can be held accountable for the consequences that ensue.
    Copyright is rather like the rules for plagarism in that regard.

  • Rob Knop says:

    Just for clarification, how is censorship being defined here?
    I was going with this one:
    "...a law passed by and enforced by governments that places restrictions on what you can say in public or what you can publish."

  • Rob Knop says:

    You can yell 'Fire!' in a crowded theater. But if there isn't a fire, you can be held accountable for the consequences that ensue.
    Copyright is rather like the rules for plagarism in that regard.
    There's a huge difference, though. Yelling "fire" in a croweded theater creates a "clear and present danger." Plagiarism does not.
    Now, there are also laws about libel and such -- copyright isn't the only legal restriction on the freedom of speech.
    What I really want is (a) that we recognize and keep in perspective that copyright is a limitation on freedom of speech, and a tradeoff we make because it's necssary-- not some wonderful good thing that has value in and of itself, and (b) that the terms of the debate change so that we recognize the tradeoff. Trying to equate copyright violation with creating a clear and present danger ("fire" in a crowded theater) or even some forms of libel warps things out of perspective.
    -Rob

  • Torbj�rn Larsson says:

    the interests of individual artists vis a vis the public domain is the issue when it comes to copyright

    I can't see that it is the issue, thus my detailing in the previous comment. But I agree that there are moral reasons behind as well, and I should have included them. I hope I'm not turning into a cynic. 😐

  • Rob Knop says:

    True, but the interests of individual artists vis a vis the public domain is the issue when it comes to copyright.
    Yeah, this is too simple.
    Sometimes it's the interests of individual artists vs. the interests of other individual artists. You want to do some sort of "remix"? Copyright makes that very challenging. You want to make a documentary that includes any aspect of modern culture, even in the background? Copyright makes that very challenging.
    -Rob

  • "I can't see that it is the issue, thus my detailing in the previous comment."
    Well, no, I think you're primarily right in that the existence of copyright law is justified on utilitarian rather than moral grounds (specifically in the U.S. Constitution). The whole logic behind copyright law is that ideas and knowledge are public goods (i.e., they have a non-divisible benefit) and thus state intervention is needed to prevent a tragedy of the commons scenario. In that sense, my objection is also utilitarian, in that existing laws in a modern context can actually be detrimental the aim of the law, i.e., to encourage innovation.
    "Yeah, this is too simple."
    Yes, you are correct. Hopefully my rephrasing above is sufficiently improved.

  • Flaky says:

    I'd argue that copyright is not necessarily censorship, using the definition Rob posted above, since copyright law cannot be applied to unpublished work. Only after you've already published something can a court order you to stop distributing copyrighted material and order you to reimburse incurred damages. (Although I wouldn't be surprised if in the USA a court could place an injunction upon intent to publish.)
    Otherwise I pretty much agree with Rob's original posting. And I agree that the effects of abuses of copyright law do not fall short of censorship.
    Oh, and Markk's example about a Mickey Mouse story does not fall under copyright law, but trademark law, which is a different beast altogether.

  • Rob Knop says:

    Re: published and unpublished, somewhere in the 1970s or thereabouts there was a change in what was copyrighted by default. Once upon a time, you had to put a copyright message on it to make sure it was copyrighted. Now, anything you write is copyrighted by default.
    As such, the "published vs. unpublished" distinction doesn't mean much. If somebody else sees it, it's distributed enough for you to have a default copyright.
    Re: Mickey Mouse, that's a trademark, but the first Mickey Mouse cartoon is under copyright-- and there's probably all sorts of "derivate work" considerations that lead Disney to want to "protect" Mickey from the public domain by preventing the copyright from those early cartoons from expiring.
    -Rob

  • Flaky says:

    I was refering to the publication status of the work infringing on someone elses copyrights, i.e. you can, (as in no-one will prevent you from doing so beforehand) publish copyrighted material without permission, thus it isn't really censorship in that sense.
    Anyway, I don't think that simply incorporating a character from a story could be considered a copyright infringement in any sane court of law. And I'd guess that the only reason why Disney wants to retain copyrights to the old classic cartoons is because they're still making money with them. They don't want to give up on their gold laying goose.

  • Rob Knop says:

    Anyway, I don't think that simply incorporating a character from a story could be considered a copyright infringement in any sane court of law.
    Well, agreed, but I think that it would be in our court of law....
    -Rob