Pomona Prof. Castillo on Dickens, Natural Rights and Copyright Law

Larisa T. Castillo, Visiting Assistant Professor of English, at Pomona College compares Charles Dickens' The Life and Adventures of Martin Chuzzlewit (irony much? You can read the entire book for free, thanks to Project Gutenberg!) with the debate surrounding Sergeant Talfourd's 1842 Copyright Extension Act, in her paper, "Natural Authority in Charles Dickens’s Martin Chuzzlewit and the Copyright Act of 1842"

Dickens, a strong advocate for international copyright protection, lobbied the US government for stopping American piracy of British Authors in 1842. He equated a copyright for his works with inalienable natural rights.

"To extend copyright terms, these reformers posited their definition of natural right upon the Lockean conception of property, through which they adopted a complex metaphorical framework of inheritance in order to justify the author’s “natural” claim to copyright. For such activists the author’s rights to his work preexisted legal precedent; thus, copyright was understood as an absolute, perpetual right because it was as “natural” as the prerogative of providing for one’s family."

Castillo combines the concept of copyright and inheritance to examine Dickens' own logic of natural rights in Martin Chuzzlewit. She identifies a paradox in the narrator's nuanced position on absolute copyrights, that ultimately work against Dickens' self interest.

"Yet Martin Chuzzlewit’s narrator, in exploring the murky boundaries of authorial right, paradoxically represents a more critical conception of natural right than that of Talfourd’s view—one that threatens Dickens’s authorial power, even as Dickens expects that copyright will protect his, and other authors’, intellectual property."

"While Dickens explicitly adopts the logic of natural right to promote his economic and political ends, and implicitly invokes that logic in the creation of his postscriptural persona, the fi ctional voice of his novel exposes the laws protecting the intellectual property of authors—laws that Dickens publicly supported—to be nothing more than arbitrary, or fi ctive, constructions of individual right, and by this means it disputes the conception of original authorship that upheld nineteenth-century copyright law."

Castillo uses this dichotomy to trace the debate surrounding intellectual property law and copyrights in 19th century England. She compares the narrative voice in Chuzzlewit with the Parliamentary arguments against copyright being a natural right. Castillo argues that Dickens' original position, along with other pro-copyright extension activists, was mostly rhetoric that his own novel ended up arguing against.

While Professor Castillo has correctly limited herself to copyright law, natural rights and Chuzzlewit, there is an entire debate about the existence of any intellectual property at all. One could use Natural Law arguments against Worsdworth and Talfour.

N. Stephen Kinsella from the Ludwig Von Mises Institute argues that intellectual property rights can contradict traditional property rights:

"Consider a copyrighted book. Copyright holder A has a right to the underlying ideal object, of which the book is but one example. The copyright system gives A the right in the very pattern of words in the book; therefore, by implication, A has a right to every tangible instantiation or embodiment of the book—i.e., a right in every physical version of the book, or, at least, to every book within the jurisdiction of the legal system that recognizes the copyright.

Thus, if A writes a novel, he has a copyright in this “work.” If he sells a physical copy of the novel to B, in book form, then B owns only that one physical copy of the novel; B does not own the “novel” itself, and is not entitled to make a copy of the novel, even using his own paper and ink. Thus, even if B owns the material property of paper and printing press, he cannot use his own property to create another copy of A’s book. Only A has the right to copy the book (hence, “copyright”)."

Kinsella argues that tangible goods and durable services are considered as private property because they are scarce and rival in nature. In other words, there is a limited amount of a certain good and if I consume it, you cannot do the same. Intellectual property rights, he states, create an artificial scarcity of information and ideas.

More importantly, property rights exist to protect that property, not ensure just compensation. Monetary transactions are to be conducted privately between individuals at a mutually agreed price and quantity.

"If I invent a technique for harvesting cotton, your harvesting cotton in this way would not take away the technique from me. I still have my technique (as well as my cotton). Your use does not exclude my use; we could both use my technique to harvest cotton. There is no economic scarcity, and no possibility of conflict over the use of a scarce resource. Thus, there is no need for exclusivity.

Similarly, if you copy a book I have written, I still have the original (tangible) book, and I also still “have” the pattern of words that constitute the book. Thus, authored works are not scarce in the same sense that a piece of land or a car are scarce. If you take my car, I no longer have it. But if you “take” a book-pattern and use it to make your own physical book, I still have my own copy. The same holds true for inventions and, indeed, for any “pattern” or information one generates or has. As Thomas Jefferson—himself an inventor, as well as the first Patent Examiner in the U.S.—wrote, “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.” Since use of another’s idea does not deprive him of its use, no conflict over its use is possible; ideas, therefore, are not candidates for property rights."

While I would not advocate any current policy to abolish intellectual property rights, I am sympathetic to the theoretical arguments against patent law. After all, intellectual property rights are also Man's invention. Tom G. Palmer, Senior Fellow at the Cato Institute , reminds us:

"American intellectual property law, while diverging in many respects from that of the United Kingdom, is rooted in the English system of patents and copyrights. Patents for new inventions were issued by the English Crown with the aim of raising funds through the granting of monopolies or of securing control over industries perceived to be of political importance, while copyrights functioned to ensure governmental control over the press in a time of great religious and political dissent. Monopoly privilege and censorship lie at the historical root of patent and copyright."

Monopoly and Censorship? That doesn't sound like 'fruit of one's own labor'