I have been known to criticise the state of American copyright law in the past, but some people were confused because most of what I said was criticism without offering much positive opinion on what things should look like. My biggest problem with the current state of affairs is that people have lost sight of the fact that the original intent of copyright was a compromise. The public would allow for certain people to control media for a time because it was the only way that certain works could be produced. As the U.S. Constitution puts it:

“The Congress shall have power […] To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Thus we get the basis of the authority which has established copyright and patent law.

It was always intuitive to me that the recent extensions of copyright did nothing to further this goal. In particular, the DMCA prohibits rather than promotes the progress of science and the useful arts, and it always seemed obvious to me that the Sonny Bono Copyright Term Extension (which extended copyright term to seventy years after the death of a work’s author) has more to do with protecting media cartels than promoting the creation of new art. However, I never really felt that I could express why I felt that way.

Well, the other day I stumbled upon a fantastic article on K5 with Lord Macaulay’s copyright speech. Lord Macaulay was an influential British statesman and philosopher who was largely responsible for drafting the legal system of colonial India, among other things.

His speech, while long, is really a gem. It is a bit of a shock for me (and probably anyone who is used to contemporary American speeches) to hear a politician give a long discourse that appeals to common sense and reason. He makes a sound case that (a) copyright is based on a compromise of accepting a necessary evil of monopoly so that creativity will flourish, and (b) extending the period of that monopoly past the death of the author does much to increase the public disadvantage of the monopoly while doing little to increase the advantage of the author. The context of the speech is that of opposition to a bill which would extend copyright duration to sixty years past the author’s death. The bill was soundly defeated.

Almost all of the speech is surprisingly relevant even today (perhaps because his warnings have been ignored?) but the most powerful is the closing of the speech:

I am so sensible, Sir, of the kindness with which the House has listened to me, that I will not detain you longer. I will only say this, that if the measure before us should pass, and should produce one-tenth part of the evil which it is calculated to produce, and which I fully expect it to produce, there will soon be a remedy, though of a very objectionable kind.

Just as the absurd acts which prohibited the sale of game were virtually repealed by the poacher, just as many absurd revenue acts have been virtually repealed by the smuggler, so will this law be virtually repealed by piratical booksellers. At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions.

Pass this law, and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot. On which side indeed should the public sympathy be when the question is whether some book as popular as Robinson Crusoe, or the Pilgrim’s Progress, shall be in every cottage, or whether it shall be confined to the libraries of the rich for the advantage of the great-grandson of a bookseller who, a hundred years before, drove a hard bargain for the copyright with the author when in great distress?

Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create. And you will find that, in attempting to impose unreasonable restraints on the reprinting of the works of the dead, you have, to a great extent, annulled those restraints which now prevent men from pillaging and defrauding the living.

If only today’s politicians had the wisdom and vision of this fellow! (Jon: now do you understand?)