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Kant on Copyright

Regular readers are no doubt aware that I don't believe in intellectual property. That is, I don't believe that you can have property rights in ideas or, generally, in intangibles. I have, however, noted that I support anti-plagiarism laws, and even suspect that they are capable of doing most of the good that so-called 'intellectual property' laws do. (Our current copyright and patent laws, in my opinion, do more harm than good.)

Kant, however, has an interesting argument (which is even more or less comprehensible - a rare find in a Kant text!) against the unauthorized publishing of books. The section is fairly short so I will publish the whole thing without authorization here:

Unauthorized Publishing of Books Is Forbidden as a Matter of Right

A writing is not an immediate sign of a concept (as is, for example, an etching which represents a certain person in a portrait, or a work in plaster that is a bust). It is rather a discourse to the public; that is, the author speaks publicly through the publisher. - But the publisher speaks (through his foreman, operarius, the printer), not in his own name (for he would then pass himself off as the author), but in the name of the author; and so he is entitled to do so only when the author gives him a mandate (mandatum). - Now it is true that an unauthorized publisher also speaks, by an edition on his own initiative, in the name of the author, but he does so without having been given a mandate by the author (gerit se mandatarium absque mandato). He therefore commits the crime of stealing the profits from the publisher who was appointed by the author (who is therefore the only legitimate one), profits the legitimate publisher could and would have derived from the use of his right (furtum usus). So unauthorized publishing of books is forbidden as a matter of right.

Why does unauthorized publishing, which strikes one even at first glance as unjust, still have an appearance of being rightful? Because on the one hand a book is a corporeal artifact (opus mechanicum) that can be reproduced (by someone in legitimate possession of a copy of it), so that there is a right to a thing with regard to it. On the other hand a book is also a mere discourse of the publisher to the public, which the publisher may not repeat publicly without having a mandate from the author to do so (praestatio operare), and this is a right against a person. The error consists in mistaking one of these rights for the other. (Immanuel Kant, The Metaphysics of Morals, tr. Mary Gregor, pp. 71-72 [AK 6:289-290])

Now, in the second paragraph of the above Kant acknowledges my concern, which is this: if I buy a book I own it, and may do as I please with it. Therefore, I may copy it, if I please, and I will own the copies and be free to do what I want with them. Nobody can own the content of the book, any more than someone could own the content of my thoughts. This has become even more pronounced with the introduction of digital storage and lossless digital copying: there just isn't that much objective difference between a copy in my head and a copy on my hard drive. If I had a photographic memory and could recite your book at any time I liked, this wouldn't be a violation of any right of yours.

All this Kant seems to agree with (although he obviously couldn't have foreseen digital copying). The author does not have any property rights in the sense of rights to physical things in 'his' books considered as 'corporeal artifacts'. However, there are limits on what he can do with the contents. One limitation, which I have already noted, is that he can't plagiarize the content: "the publisher speaks ... not in his own name (for he would then pass himself off as the author), but in the name of the author." To attempt to pass himself off as the author would be to claim another's work as his own, a form of lying. Not just any lie can be punished though. As Kant says earlier, an individual is "authorized to do to others anything that does not in itself diminish what is theirs, so long as they do not want to accept it - such things as merely communicating his thoughts to them, telling or promising them something, whether what he says is true and sincere or untrue and insincere (veriloquium aut falsiloquium); for it is entirely up to them whether to believe him or not" (pp. 30-31 [AK 6:238]). In a footnote to this passage, he clarifies, "the only kind of untruth we want to call a lie, in the sense bearing upon rights, is one that directly infringes upon another's right, e.g., the false allegation that a contract has been concluded with someone, made in order to deprive him of what is his."

When one person plagiarizes another's work, the plagiarist alleges that the author did not really write the work in question, which is precisely the type of "false allegation" that Kant is concerned with - it is intended to deprive the author of the benefit of his labor by not giving him credit, and the plagiarist in fact intends to get the credit himself. So plagiarism is bad.

Kant, however, goes farther than this in claiming that unauthorized publishing is an offense of the same kind. Why? Because the publisher "speaks ... in the name of the author," so an unauthorized publisher spreads the false allegation that she (the publisher) speaks on the author's behalf.

Now, Kant is very difficult to read, but this is all the argument I see here. (Does anyone else see more than this in the quotation or its context?) Yet Kant concludes from this that the unauthorized publisher "commits the crime of stealing the profits from the publisher who was appointed by the author." Perhaps the idea is that the unauthorized publisher is pretending to be authorized (which is, of course, what usually happens) and benefiting from this pretension, in which case he certainly does offend against the authorized publisher in a perfectly straightforward way, for which compensatory damages can easily be assessed: there are a determinate number of people who intended to buy authorized copies of the book who were duped into buying unauthorized copies, and we can determine the amount of money that should have gone to the authorized publisher by counting them up.

The first thing to note is that if this is all that is going on in (this part of) Kant's account, it doesn't come anywhere near establishing the rightness of anything like modern copyright and patent law. Secondly, it seems like it should still be possible to produce an unauthorized edition of the work without committing either of the two types of fraud identified: an unauthorized publisher must both credit the author and state that his edition is unauthorized. Both of these things must be done in such a way that there is no doubt or confusion on the part of the buyer. In this circumstance, there is good reason to believe that many buyers will opt for the authorized edition, and they may even be willing to pay a premium for it. If a publisher meets these conditions, is there any good reason (Kantian or otherwise) left for supposing that he violates the rights of either the author or the authorized publisher?