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Chapter Eight Reducing Social Inequality 1 OWNERSHIP CAUSES SOCIAL INEQUALITY. TO REDUCE SOCIAL INEQUALITY, REDUCE OR DIFFUSE OWNERSHIP AN ANALYSIS WITH PARTICULAR APPLICATION TO THE COPYRIGHT SYSTEM BENEDICT ATKINSON BA (Hons) LLB LLM (Research Hons 1) University of Sydney A thesis submitted in fulfilment of the requirement for the degree of Doctor of Philosophy at Australian Catholic University 2015 2 TO MY PARENTS Ave atque vale I thank my supervisors Professor Brian Fitzgerald and Dr John Gilchrist for the effort they made on my behalf and their excellent counsel. 3 STATEMENT OF SOURCES/ORIGINAL AUTHORSHIP The work has not been previously submitted to meet requirements for an award at this or any other higher education institution. The work is original and does not reproduce work previously published by me. I cite in some footnotes in the text published works of which I am the author or a joint-author. Citations are specific and complete, and details of the works are also reproduced in the bibliography. To the best of my knowledge and belief, this dissertation does not reproduce material previously published or written by another person except where attribution or reference is made. Signature Date 4 ABSTRACT Humans contest for control or ownership. Contest is to a considerable extent inescapable because conceptually a large part of most grammars involve possession and appropriation. Language creates antithesis (‘mine, yours’) that results in conflict. The result of conflict is possession and dispossession, which results in ownership, which is expressed in property and property systems. This dissertation focuses on the exclusionary effect of property systems. Property confers the power to exclude and the aggregate of legal exclusions, which constitutes a property system, objectively or instrumentally creates social exclusion and thus social inequality. Income and property tax facilitate redistribution, reducing social inequality. Another mode of reducing/diffusing the exclusionary effect of ownership is to enlarge the public domain, which I define as a commonwealth of non-control and non- ownership. KEY WORDS Author, authors, constitution, constitutional, contest, control, copyright, copyright industries, crown, dispossession, distribution, equality, exclusion, exclusionary rights, exclusive rights, feudal, feudalism, freehold, grammar, hierarchy, income, income concentration, income distribution, inclusion, inequality, language, leasehold, legislation, owner, ownership, paratrophic, poorer countries, possession, possessive grammar, poverty, property, proprietary rights, public domain, regulation, rent, richer countries, rights, rights of inclusion, social exclusion, social inequality, source of authority, sovereignty, title, treaties, unitive rights, wealth distribution, wealth concentration. 5 DICTIONARY OF ACRONYMS IN DISSERTATION ACC Australian Copyright Council APRA Australasian Performing Right Association ASCAP American Society of Composers Authors and Publishers BIRPI Bureaux Internationaux Reunis pour la Protection de la Propriete Intellectuelle (United Bureaus for Protection of Intellectual Property) CBS Columbia Broadcasting System (now CBS Corporation) CONTU Commission on New Technological Uses of Copyrighted Works EMI Electrical and Musical Industries (now EMI) LDC Least (or Less) Developed Country NAA National Archives of Australia NAB National Association of Broadcasters NBC National Broadcasting Corporation IFPI International Federation of the Phonographic Industry IPA International Publishers Association PPL Phonoraphic Performance Limited PRS Performing Right Society Rome Convention International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations). TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights UCC Universal Copyright Convention UN United Nations UNDP United Nations Development Programme UNESCO United Nations Educational Scientific and Cultural Organization UNDHR Universal Declaration of Human Rights USTR United States Trade Representative WIPO World Intellectual Property Organization WIPO Internet Treaties WIPO Copyright Treaty 1996 WIPO Performances and Phonograms Treaties WTO World Trade Organization 6 CONTENTS STATEMENT OF ORIGINAL AUTHORSHIP 3 ABSTRACT AND KEY WORDS 4 ACRONYMS USED IN DISSERTATION 5 INTRODUCTION 14 Part 1 – Thesis and dissertation 15 Demonstrating the thesis 15 Allocation of rights 19 Rights and ownership 22 Rights of inclusion and exclusion 24 The idea of property 26 Contest for sovereignty and possessive grammar 29 Part 2 - Method 33 Method and chapters 33 CHAPTER ONE THE UNITIVE RIGHTS 40 PART 1 - RIGHTS OF INCLUSION AND EXCLUSION 41 Rights 41 Part 2 History of unitive rights 49 7 Christianity 49 The idea of solidarity 52 Spiritual equality 54 Reinterpreting natural law 54 ‘All men are born equal’ 57 19th century 60 Racial equality 64 United Nations 66 United Nations Declaration of Human Rights 67 International law and development 68 CHAPTER TWO PROPRIETARY RIGHTS 71 Part 1 Proprietary rights and exclusion – some historical examples 72 Property is distributive and exclusionary 72 Control and exclusion 74 Athens and Rome and social exclusion 75 The problem of constitutional settlement 79 Source of authority 82 Spanish empire 85 Part 2 Property Discourse 90 Society and social welfare 90 Property 91 Adam Smith 93 8 Natural law in favour of representative government 94 Natural law, liberalism and inequality 95 CHAPTER THREE THE GRAMMATICAL CATEGORY OF POSSESSION AND INNATE HUMAN TENDENCY TO CONTEST FOR POSSESSION 97 Part 1 Possessive grammar, property and exclusion 98 Assumptions about propensity or innateness 98 Possessive grammar, antithesis, conflict, exclusion 99 Chomsky and innate/universal grammar 100 Grammar and reality 102 Some considerations about grammatical structure and possession 103 The possessive case 104 Possessive pronouns and adjectives 105 Verbs of possession 107 Possession 109 Property and ownership 110 Exclusion 114 Inalienable, alienable possession 116 Conclusion 122 Part 2 - Evidence of drive to contest for control 124 Gene for aggression 125 The brain and aggression 126 Evolutionary robotics and the psychology of human violence 128 Anthropological explanations 130 9 Sociology of aggression 130 Subconscious source of aggression 132 Alienation, otherness and assertion of power 134 CHAPTER FOUR THE PROBLEM OF DISTRIBUTION 137 Part 1 Wealth Distribution 138 Relevance of wealth distribution 138 Redistribution 140 Intractable pattern of wealth distribution 144 Effect of social inequality 147 Gini 149 Human development 151 Wealth exclusion is proprietary exclusion 154 Critical role of income redistribution in richer countries 160 Part 2 Capital and ownership 164 Return on capital > growth 164 Reconstruction and redistribution 164 Role of government 170 CHAPTER FIVE THE COPYRIGHT SYSTEM – THE PROCESS OF PROPRIETARY EXCLUSION IN ACTION 175 10 Part 1 Introduction 176 Summary 176 Model 179 Phases of growth 180 Part 2 Phases 182 Phase 1 182 Phase 2 184 Phase 3 189 Phase 4 200 Part 3 Exclusion 208 Exclusionary character of copyright system 208 Excluding effects 211 Economic success a marker of exclusion 215 CHAPTER SIX THE RENTIER COPYRIGHT SYSTEM 217 Part 1 Authors’ rights and influence of the Berne Convention 218 Victor Hugo and authors’ rights 218 Constitutional nature of Berne Convention 223 Revision of the Berne Convention and further development of copyright system 226 Part 2 Characteristics and evolution of the copyright system 233 11 The evolving copyright system 233 Feudal comparison 236 Key characteristics of feudal, copyright and freehold estates 240 Part 2 Copyright bargains, markets, and the remuneration right 244 The compulsory copyright bargain 244 Government and the compulsory copyright bargain 247 The role of courts 252 A ‘market’ for public performance 255 Remuneration right 260 CHAPTER SEVEN THE PARATROPHIC COPYRIGHT SYSTEM 262 Part 1 Evolution of a paratrophic system 263 A paratrophic copyright system 263 The radio wars 268 Radio war in United States 274 Access and compulsory licensing 279 Photocopying 282 Compulsory licence for educational materials and photocopying 283 Paratrophic tendency 284 Part 2 Exclusionary effect and exceptions 288 Ownership concentration 288 Choice to exclude 289 Fair abridgement, fair use and assertion of proprietary domain 291 12 Statutory exceptions, copying and proscription 294 Part 3 Conclusion 298 Key elements of copyright system 298 Paratrophic arrangements 300 Purpose and effect of royalties 300 Exclusionary consequences 303 CHAPTER EIGHT REDUCING SOCIAL INEQUALITY: SOME REFORM PROPOSALS 306 Preliminary 307 Domains and duration of rights 308 Reducing the copyright term 311 Public and private domains 319 Enlarging the public domain 320 Suggestions for a public domain 321 Public domain and term 324 CHAPTER NINE SUMMING UP THE ARGUMENT The dissertation: thesis, justification, findings and summing up 330 Purpose 330 Propositions examined 330 Novelty 332 Summing up 334 13 ANNEX A CASE STUDIES IN WEALTH CONCENTRATION 339 ANNEX B TAXATION POLICY 346 BIBLIOGRAPHY 349 TABLES AND FIGURES IN TEXT FIGURES FIGURE 1 – WORLD POPULATION SHARE OF WEALTH 157 FIGURE 2 - WEALTH INEQUALITY EUROPE v US 168 FIGURE 3 – RETURN v GROWTH, HISTORICAL 170 FIGURE 4 – DISTRIBUTION OF MEAN INCOME GROWTH 173 FIGURE 5 - MODEL OF PROPRIETARY EXCLUSION 179 FIGURE 6 – ELABORATED MODEL OF PROPRIETARY EXCLUSIONS 217 FIGURE 7 - PRIVATE AND PUBLIC DOMAINS 309 TABLES TABLE 1 – WORLD’S 10 LEAST UNEQUAL COUNTRIES BY HDI
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