18 August 2005

Copyright, Property and Theft

"Property Rights - Property Rights - Property Rights!", reads a slide in a presentation by the CEO of the RIAA to the National Association of Recording Merchandisers (via BoingBoing)

Intellectual Property is not actual property — legally there are differences, and practically there are huge differences. If someone uses my intellectual property, they do not interfere with my use of it.

But there is a closer analogy to IP in the realm of property law than the one the RIAA (and other copyright radicals*) use.

If I own the land, I have the right to exclude trespassers.

Trespass, like copyright infringement, is not (usually) a crime. It is a tort - I can proceed against trespassers in civil court.

The right to exclude trespassers is limited. Public rights of way can exist, or can come into being, across my land, and the public hs a right to make use of them. If I sell or rent part of my land, the necessary rights of access might be implied. (this can get legally very complex).

There is an obvious, though inexact, analogy between public rights of way across private land and "fair use" of copyrighted material.

So, the next time someone talks about "copyright theft", interrupt them and say "I think you mean 'copyright trespass'".

* The actual practical political debate over IP is over whether copyright law should be extended in scope. In this debate, I am a conservative — indeed a reactionary, since I want recent extensions to be reversed — and the RIAA etc. are the radicals with a new vision of copyright.

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