When making laws, there are nominally quality criteria that need to be met for each new law. Are these quality criteria really fulfilled for the copyright monopoly?
Any new law that is being made somewhere needs to fulfill three quality criteria to be legislated – honorably legislated, at least. It needs to be necessary, effective, and proportionate:
It needs to be necessary – the law being made needs to address a real (or at least perceived) problem.
It needs to be effective – the law being made needs to solve the targeted problem, if enacted.
It needs to be proportionate – the law being made must not create worse problems than the one being solved.
Let’s see how these legislative quality criteria measure up against the different copyright monopolies, shall we?
There are four parts of the copyright monopoly. To begin with, you have two commercial monopolies, those on duplication on fixation of a work and of performance/broadcast of a work. Sadly, these two are treated quite differently in law, but are indistinguishable with the advent of the internet – which is why you see stupid legal constructs that try to assert that there is some kind of server-side difference between streaming media and downloaded media. (Hint: there isn’t.)
Going out on a limb and assuming that these two monopolies can be reconciled into a general commercial “remote duplication” monopoly, is it necessary, effective, and proportionate?
Whether it is necessary depends on your point of view – and above all, what problem you are trying to solve by writing the copyright monopoly into law (or keeping it there). You will hear as many justifications for the copyright monopoly as you hear copyright monopoly advocates. Originally, it was enacted on May 4, 1557 in order to stifle political dissent, when Queen “Bloody” Mary persecuted Protestants and wanted control of subversive pamphlets. That justification would hardly fly today.
Would such a unified commercial monopoly be effective, then? Well, that again depends on your original justification. If the idea is to allow artists to make money – well, 99.98% of artists never see a cent in royalty under the current copyright monopoly system, so the effectiveness can be… disputed, to express ourselves with a slight understatement. On the other hand, if the idea is to legislatively lock in a market for obsolete middlemen, then it is most certainly effective.
But where the commercial unified and imagined “remote duplication” monopoly falls is on proportionality. Any digital channel that can be (and is) used for private communications can also be used to transfer works that are under the copyright monopoly. Therefore, enforcement of the monopoly needs abolishment of the postal secret: you can’t sort legal from illegal without looking at it first, which breaks the postal secret.
A commercial monopoly that breaks the postal secret, a fundamental right and a fundamental liberty, is clearly disproportional.
So let’s take a look at the two other monopolies in the copyright monopoly umbrella – the so-called moral rights.
The first moral right is the right for an artist to prevent a performance of the work that violates the integrity of the artist or the work. I fail to see what problem this law tries to solve. Surely an artist could object to a development of his or her work – but that’s what art is: its beauty is in the eye of the beholder, not in the pen of the artist. No artist gets to own the perception of his or her art after it has been released. What problem, what real problem, is this law – this monopoly – trying to solve?
The second moral right is the right for artists to be associated with his or her work. This right carries significant social support – so much support, in fact, that the social penalties for violating this association are severe, and significantly harsher than any laws upholding this monopoly.
After all, if you plagiarise part of a thesis in academia, you get fired from the profession for life. A €100 fine is hardly going to make a difference in that context. Thus, while the norm carries public support, adding a €100 fine to the social penalty does absolutely nothing and is unnecessary.
In summarizing, the copyright monopoly rates abysmally in terms of legislative quality. It has no place in our laws if quality is a virtue for legislators, and it should be – for legislators as for every craft – but the monopoly needs to be dismantled gradually due to its infiltration everywhere.