Universe Vol1Num2

by Jim Baen's Universe

  For those of you who are not writers and are wondering what "work-for-hire" means, it means exactly what most of you do for a living. You go to work every day, for which you get paid (as a rule) a sum of money determined by the length of time you work, adjusted for whatever level of skill you bring to the labor.

  Why should writers get paid any differently? Why, to put it another way, should a writer be entitled to a share of the money earned by his or her product, when a waitress or a truck driver or an accountant or a steel worker is not?

  When I was a machinist, I was paid by the hour. Let us say, for example, that I made a shaft to be used in a machine making parts for automobiles. I got paid for the work I did. But I did not get "royalties" which constituted a share of the sales eventually earned by the auto manufacturer because they used my shaft (among a multitude of other parts) to make their product.

  So why should writers get royalties?

  Well, there's an answer, but it's a bit complicated. First of all, it's because intellectual labor that can be easily reproduced poses a particular set of problems for remunerating the creator. Writers cannot, as painters and sculptors typically do, sell their actual product. A sculptor will spend weeks or months on a particular piece of art, and then sell that individual work to an individual customer. Once the sale is made, the piece of art is owned by the customer, not the sculptor—and, sure enough, sculptors do not get royalties.

  But an artist can do that because the concrete, material object he or she produced has a value of its own. A piece of text, such as a novel manuscript, has no such value. (I leave aside the small collectors' market, which couldn't possibly support most writers—and wouldn't exist anyway, if books weren't published.)

  The value of text is in the ability to reproduce it many times over for a large audience. But that same ability to be easily reproduced creates the problem. In a nutshell, if a "legitimate" publisher can reproduce the text, so can (theoretically, at least) anyone else.

  Which, in fact, was exactly the situation in the English-speaking world prior to the institution of copyright. (I'm using the history of the English-speaking world with regard to copyright because I'm most familiar with it. But you could find a similar historical pattern anywhere.) Plays produced by Shakespeare or Ben Jonson could be produced by anyone who wanted to. The authors got their money—which was damn little—by selling the manuscript to a producer and then letting the producers fight it out over which one could put on the most popular performance.

  That worked . . . badly, but well enough, so long as most literature took the form of plays and there was not yet a very well-developed publishing and distribution industry. The cost of putting on a play was and is very high, and the cost of obtaining the manuscript was a small part of it. That entry-level cost eliminated most potential chiselers.

  As for poetry and other forms of literature, they were either produced by the author at his or her own expense, or paid for by a patron.

  The first real copyright law in the English-speaking world was the so-called Statute of Anne, adopted by the British Parliament in 1709. That statute—which didn't actually take effect until 1710—vested authors with a legal monopoly of the work for a period of 14 years after it was copyrighted.

  Why were authors given the monopoly instead of publishers? The reason is simple: somebody has to have the copyright, or society has no option except to rely on patronage. The problem with using work-for-hire as the basis for paying authors is that it won't work unless publishers have the ability to establish copyright—or you simply push the problem back a step. And, that being so, the British parliament (very correctly, in my opinion) decided that it was fairest to give the monopoly to the ultimate producer rather than to a middleman.

  What's necessary to understand, however, is that at every step of the way the basic consideration was society's interest. In the absence of any over-riding social imperatives, authors and publishers have no more "right" to a legal monopoly than anyone else does. To put it another way, copyright does not exist simply to enable authors to make a living—which could and can be done several other ways—but to make a living in a way which is most beneficial to the society as a whole.

  You can't ever lose sight of that framework.

  The value of copyright, as Macaulay put it very well, is that while it is an evil, it is less evil than any of the alternatives. The only real alternative is patronage—public or private—and those have well-known drawbacks. Almost any form of patronage runs at least the risk that whoever the patron is—public or private—it will be the patron who determines what does and does not get produced. The advantage to copyright is that, at least potentially, it gives the author the ability to find his or her own market for the work.

  Mind you, patronage continues to exist in publishing, and always has—a lot of it, in fact. To give some examples:

  All publications by the government are paid for by the patronage (ultimately) of the taxpayer. That's why, with the exception of some material, usually classified for security reasons—whether properly or improperly, but that's a separate political issue I won't deal with here—everything published by the U.S. government printing office is automatically in the public domain.

  A great deal of scholarly publications are paid for by patronage—or, at least, most of the cost is borne by patrons. To give a common example, university researchers who publish a book typically retain copyright and earn some money from the book. But, with a very few exceptions, they couldn't possibly afford to do the needed research and writing on the actual proceeds of the sales of the book. The real cost of the book is borne by the university, which pays them a salary to engage in research and writing.

  To give yet another example, a great deal of political writing is paid for by patronage. That's especially true for writing which advance opinions or proposals that are outside the accepted mainstream.

  There's nothing wrong with patronage, as such—as long as you don't let it take over the whole show. You need copyright, among other things, as a constant check against patronage getting too restricted.

  All right, let me recapitulate. So far, I've addressed the first two of the three questions I posed at the beginning of this essay:

  1) What sort of protection do authors require, to make sure that they can and will keep engaging in their labor?

  2) Why do they need a particular sort of protection, as opposed to another?

  That leaves the third question, which is the critical one for the rest of what I'll be discussing in this essay:

  3) For how long do they need it?

  I'll discuss the details involved in this question in my next essay. But for now, briefly, there are two answers to this question:

  First, authors need to have enough protection to enable them to be able to make a living as full-time writers.

  Second, that protection has to be long enough to provide them with a motivation to write for the public, and see doing so as a possible profession.

  But that's it. Those are the only two legitimate concerns. Any term of copyright which exceeds that minimum necessary length, as Macaulay put it in the quote I cited in my last column, has no legitimate purpose. Once you cross that line, a necessary evil has simply become an evil—and the farther past that line you go, the more evil it gets.

  At the onset of what I will call the "copyright era," which began in 1709 and has now lasted almost three centuries, the term of copyright was set at fourteen years. The newly-formed United States, in 1790, adopted in its first copyright law a modification of that, which allowed for copyright to be extended an additional fourteen years if the author chose to renew it. In 1831, Congress revised the law to allow for an initial copyright term of twenty-eight years, with the possibility of another fourteen years if the author chose to renew—i.e., they made copyright last for a possible total of forty-two years.

  For reasons I will argue in my next column, Congress got it . . . pretty close to right at that point. Not quite, because the
extension provisions create unnecessary complications and a provision needs to be added that ties copyright to the life of the author, or you get into a different kind of problem. My own position is basically that advanced by Macaulay in his 1841 speeches—a flat 42-year period of copyright (I'd simplify it and make that just forty years), with the provision that so long as the author is alive he or she retains copyright.

  But that's for the next column. What I wanted to do in this essay is establish the basic parameters of the problem. That's critical because of the well-known old saw about debates:

  Whoever sets the terms of the debate automatically wins the debate.

  The reason the parameters are critical is because what has been happening in modern society is that the terms of the debate have been steadily (and stealthily, to call things by their right name) shifted back to the terms which the "perpetual natural right" theorists tried to advance in the middle of the 19th century to undermine copyright law.

  One hundred and fifty years ago, men such as Macaulay in Britain and Justice McLean of the U.S Supreme Court, torpedoed that attempt.

  I've already introduced you to Macaulay. I'll end this essay by giving Justice McLean his well-deserved credit. Here is a quote from his majority decision in the case of Wheaton vs. Peters, in which Wheaton advanced the argument that authors were entitled to perpetual property rights in their work:

  "...since the statute of 8 Anne, the literary property of an author in his works can only be asserted under the statute. . . . That an author, at common law, has a property in his manuscript, and may obtain redress against any one who deprives him of it, or by improperly obtaining a copy endeavours to realise a profit by its publication cannot be doubted; but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work, after the author shall have published it to the world."

  Always remembers that the terms of a debate are what's critical. Copyright is about the needs of society, not about abstractions concerning "property" as such.

  As before, I'll end this essay by urging everyone to read Macaulay's speeches. You can find them in this issue of Universe: a direct link to that article is available.

  Look, folks, you may as well just bite the bullet and read the damn things. Because before I'm done, I will have quoted just about every word in them anyway. I told you at the beginning: There is nothing involved in the current disputes over copyright that Macaulay didn't answer a century and a half ago.

  If I wanted to be philosophically pretentious, I'd close by citing Santayana's famous saw that those who remain ignorant of history are doomed to repeat it. But having cleverly cited the old saw with that disclaimer, I can put it more simply still:

  For Pete's sake, how many times do you insist on re-inventing the wheel?

  McCauley on Copyright

  Author: Eric Flint

  These are two speeches given by Thomas Macaulay in Parliament in 1841, when the issue of copyright was being hammered out. They are, no other word for it, brilliant—and cover everything fundamental which is involved in the issue. (For those not familiar with him, Macaulay would eventually become one of the foremost British historians of the 19th century. His History of England remains in print to this day, as do many of his other writings.)

  I strongly urge people to read them. Yes, they're long—almost 10,000 words—and, yes, Macaulay's oratorical style is that of an earlier era. (Although, I've got to say, I'm partial to it. Macaulay orated before the era of "sound bytes." Thank God.)

  But contained herein is all wisdom on the subject, an immense learning—and plenty of wit. So relax, pour yourself some coffee (or whatever beverage of your choice) (or whatever, preferably not hallucinogenic), and take the time to read it. The "oh-so-modern" subject of "electronic piracy" contains no problems which Macaulay didn't already address, at least in essence, more than a century and a half ago.

  I should note that Macaulay's position, slightly modified, did become the basis of copyright law in the English speaking world. And remained so (at least in the US) for a century and a half—until, on a day of infamy just a few years ago, the Walt Disney Corporation and their stooges in Congress got the law changed to the modern law, which extends copyright for a truly absurd period of time. Which—those who forget history are doomed to repeat it—is a return to the position advocated by Macaulay's (now long forgotten) opponent in the debate.

  Eric Flint

  A SPEECH DELIVERED IN THE HOUSE OF COMMONS ON THE 5TH OF FEBRUARY 1841

  by Thomas Babington Macaulay

  On the twenty-ninth of January 1841, Mr Serjeant Talfourd obtained leave to bring in a bill to amend the law of copyright. The object of this bill was to extend the term of copyright in a book to sixty years, reckoned from the death of the writer.

  On the fifth of February Mr Serjeant Talfourd moved that the bill should be read a second time. In reply to him the following Speech was made. The bill was rejected by 45 votes to 38.

  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. 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.

  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; 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. In Kent the sons share and share alike. In many districts the youngest takes the whole. Formerly
a portion of a man's personal property was secured to his family; and it was only of the residue that he could dispose by will. Now he can dispose of the whole by will: but you limited his power, a few years ago, by enacting that the will should not be valid unless there were two witnesses. If a man dies intestate, his personal property generally goes according to the statute of distributions; but there are local customs which modify that statute. Now which of all these systems is conformed to the eternal standard of right? Is it primogeniture, or gavelkind, or borough English? Are wills jure divino? Are the two witnesses jure divino? Might not the pars rationabilis of our old law have a fair claim to be regarded as of celestial institution? Was the statute of distributions enacted in Heaven long before it was adopted by Parliament? Or is it to Custom of York, or to Custom of London, that this pre- eminence belongs? Surely, Sir, even those who hold that there is a natural right of property must admit that rules prescribing the manner in which the effects of deceased persons shall be distributed are purely arbitrary, and originate altogether in the will of the legislature. If so, Sir, there is no controversy between my honourable and learned friend and myself as to the principles on which this question is to be argued. For the existing law gives an author copyright during his natural life; nor do I propose to invade that privilege, which I should, on the contrary, be prepared to defend strenuously against any assailant. The only point in issue between us is, how long after an author's death the State shall recognise a copyright in his representatives and assigns; and it can, I think, hardly be disputed by any rational man that this is a point which the legislature is free to determine in the way which may appear to be most conducive to the general good.

  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; 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.