Why Is The Copyright Monopoly Necessary, Anyway?

• By Rick Falkvinge
• on February 23, 2014

Opinion

The copyright industry is amazing at pretending the copyright monopoly has always been there in its current form. But international copyright monopolies didn't exist in practice across the Western world before 1989.

I sometimes try to hold the copyright monopoly to the same legislative quality standards as other laws.
It fails laughably at the “necessary, effective, and proportionate” test, where a law must be necessary (meet an identified legislative need), effective (solve that problem effectively), and proportionate (not cause worse damage in the process).
Most of the time, the copyright monopoly fails all three tests, and when legislators have this pointed out to them, they shift uncomfortably in their chairs and change the subject.
I don’t know any profession except legislation that gets away with such abysmal quality assurance.
Most of the time, the discussion focuses on the “effective” and “proportional” parts of copyright legislation, illustrating how it is absolutely toothless in the absence of draconian privacy invasions, which is exactly what the copyright industry is tenaciously pushing for – which brings us to the “proportional” part right in the next sentence.
For once, though, “necessary” is up for debate. Is the copyright monopoly even necessary to solve a real problem? If so, what specific problem is it trying to solve? This passage is notably absent from most copyright monopoly legislations: “The purpose of this law is X”. If you were arguing for the introduction of such a monopoly today, how would you justify it? Could you conceivably do so?
To that effect, a new book, Without Copyright, was published recently. It reminds us of a sobering fact – even though the copyright monopoly was created in 1554 in England by “Bloody” Mary I in order to persecute political dissenters, it didn’t have much of an international effect until the 1900s. The copyright monopolies only protected authors of books in their own countries; outside the author’s own country, it was generally a free-for-all, and nowhere moreso than in the United States.
The international convention that turns copyright monopolies international is known as the Berne Convention, and it is overseen by the UN organization WIPO (the only UN organization to be funded by outside private interests). The United States ratified the Berne Convention only when it became geopolitically important to aggressively push its monopolies onto other countries, as described in The History of Copyright. More specifically, the United States ratified international copyright monopolies on March 1, 1989.
That’s very recent. To put it in perspective, that’s a newer event than Mario Bros, Die Hard, The Princess Bride, and The Legend of Zelda. It’s over fifteen years after the introduction of TCP/IP, the communications protocol of the modern Internet.
The U.S. had recognized some international monopolies to a very limited degree before that point. But before 1891, only citizens and residents of the United States could qualify for copyright monopolies at all. In today’s words of the United States: America was a rogue piracy state, plain and simple. That begs the obvious question – if there was no copyright monopoly, how did the writers make money, and since we have been told this always depends on the copyright monopoly, why were any books written at all in this time period?
But books were written before 1891. Tons of them. And there’s nothing to indicate more books were written after the United States accepted international monopolies, neither in the 1891 change nor in the 1989 change.
The answer, it turns out, was very simple. There wasn’t really any need for the copyright monopoly. There was a whole slew of tools available for publishers and authors to enforce business terms and make their agreed money, where – notably – not a single one of them involved lawyers. And this was considered modern times.
So that lets us return to the question:
How necessary is the copyright monopoly, anyway?