Jeffersons Warning and Macaulays Evil

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"The Public Domain"  by James Boyle is undoubtedly one of the best introductions to the origins, concepts and dangers of copyright law you can find. Not only available in print but also online.

One of the gems in his book is what great minds in the past have said and written about copyright, such as Thomas Jefferson. (see this page).

"Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not."

The Jefferson Warning boils down to 5 cautions.
• First, the stuff we cover with intellectual property rights has certain vital differences from the stuff we cover with tangible property rights. Partly because of those differences, Jefferson, like most of his successors in the United States, does not see intellectual property as a claim of natural right based on expended labor. Instead it is a temporary state-created monopoly given to encourage further innovation.
• Second, there is no "entitlement" to have an intellectual property right. Such rights may or may not be given as a matter of social "will and convenience" without "claim or complaint from any body."
• Third, intellectual property rights are not and should not be permanent; in fact they should be tightly limited in time and should not last a day longer than necessary to encourage the innovation in the first place.
• Fourth, a linked point, they have considerable monopolistic dangers--they may well produce more "embarrassment than advantage." In fact, since intellectual property rights potentially restrain the benevolent tendency of "ideas . . . [to] freely spread from one to another over the globe, for the moral and mutual instruction of man," they may in some cases actually hinder rather than encourage innovation.
• Fifth, deciding whether to have an intellectual property system is only the first choice in a long series.13 Even if one believes that intellectual property is a good idea, which I firmly do, one will still have the hard job of saying which types of innovation or information are "worth to the public the embarrassment" of an exclusive right, and of drawing the limits of that right.

Thomas Macaulay repeated this position in England 30 years later:

"It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good."

I wonder if any politician who is discussing copyright extensions to 99 years or "three strikes you are out" proposals has ever bothered to read what great minds have thought and said...

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