The following transcript is an excerpt of an interview with Professor of law Tom W Bell, author of Intellectual Privilege, Copyright, Common law and the Common Good.
“Part of your argument is that common law principles actually work better than current copyright statutes. I’m wondering can you explain that a little bit. “ Todd Krainin
“By the common law I mean fundamentally those few simple rules of contract law, property law and tort law: that kind of form the foundational principles of our legal system. They are the backdrop against which legislators pass laws. So copyright is in contrast to the common law and my argument is that we should try in so far as possible to exit from that special regime of copyright back to the common law. Because I think if we just have people using creative ways, contracts, property rights in the form of say DRM, tort rights, we can get many of the boons of copyright without all the statutory failures we’ve seen in the statutory process. “Tom Bell
“You’ve also written that your goal is get beyond the idea of copyright. It’s interesting you write “Our packet switch society relies on a few simple rules based on natural rights and implemented through the common law to define a protocol universally just and locally fair. I’m wondering then what the chief benefit is of getting beyond copyright .” Todd Krainin
I’m glad you brought that up: it's kind of an abstract point but I think it’ll resonate with libertarians I analogize the common law system to the packet switching which make the internet work so well. And the same analogy extended to copyright makes copyright look like circuit switching, the old phone network. And there’s advantages to both but too many people don’t appreciate sufficiently how the common law can generate these wonderful things, unforeseeable things, things that are hard for us to predict because it’s a more free flexible system. So I think a lot of the boons we get from copyright we can get from common law as well. We could have new works of art, dissemination of books and photos and things if we didn’t have copyright getting in the way. It’s a top down process, comes out of Washington suffers all the legislative failures that legislation always faces and that’s in contrast to this bottom up process. This spontaneous order we get from the common law. So insofar as possible I think we would benefit from exiting from that statutory regime: very control and rigid and top down into a more flexible open spontaneous system we get with the common law.” Tom Bell