Cancel culture, copyright and the Harper’s letter

The backlash to the release of “A Letter on Justice and Open Debate” by Harper’s Magazine reveals the real reason copyright is vital to a free and open society. Rather than primarily an “incentive to create,” copyright gives incentives and protection to make controversial public statements. Our virtual public square has become so toxic that many individuals are wisely thinking twice before making any statements in it. 

The letter decried the “rising illiberalism” resulting not only from President Trump and his followers’ provocations, but also from the hardening “dogma and coercion” of those who oppose the Trumpists. “Cancel culture,” in which online masses seek to censor controversial speakers with whom they do not agree, has become a potent and possibly destructive force. Without using the term, the letter describes its salient features: “an intolerance of opposing views, a vogue for public shaming and ostracism, and the tendency to dissolve complex policy issues in a blinding moral certainty.” 

And yet, such a socio-political environment is not unique to our time. The public square has long been a dangerous viper’s den. From at least Greco-Roman times, there has been a long-standing distinction between private and public social spheres. Private statements were often of little consequence. But public statements could have devastating social consequences for their author, unless formally retracted. These consequences are distinct from the threat of formal criminal punishment. Accordingly, many authors circulated works privately, carefully guarding them from the public sphere.

The Latin publicare is the root of our modern “publish.” It meant to make something public or put it into the public square. Long before the printing press, authors could choose whether to publish their works by exercising an informal right of first publication based on the private status of their work. Terms for the work’s release were negotiated with publisher booksellers.

During the Renaissance, European governments experimented with granting exclusive rights to trade, artisanal production and writings because too much was being done secretly, often controlled by guilds. The printing press accelerated the distribution potential of writings. But many authors still circulated their works privately, for fear of social reprisal, reputational harm and in some cases criminal charges.

Intellectuals sought a “Republic of Letters” during the scientific revolution and Enlightenment based around open rational discourse. It was to be a pan-European egalitarian society of free thinkers existing through exchanged manuscripts in Latin or French that transcended national boundaries and provincial biases. But controversial writings still sometimes triggered dangerous backlashes. At the same time, many of the benefits of writing – obtaining patronage, scientific priority credit – did not always require publication. Still, the possibility of making a living off one’s writings due to the economics of the printing press was a draw to publication as well. 

The 1710 British Statute of Anne created a new deal that may well have tipped the balance for many authors. They could get strong exclusive rights in exchange for publishing and registering their writings. This was different from the private “copy rights” held by publishers in the Stationers Company guild, as well as from the ad hoc exclusive grants available on the continent. 

Under the statute, copies also had to be deposited in university libraries so that the work would be permanently accessible, even if it went out of print. Our Copyright Act in the United States was largely modeled after the statute.

And yet, the challenge for thoughtful authors remains the same. Distribute one’s thoughts privately or risk the tsunami of backlash enabled by a culture built on reality TV and social media — wherein sparking raw emotions and outrage is the coin of the realm.

Cancel culture’s response to the letter itself in fact caused some of its signatories to either distance themselves from the statement or even withdraw their endorsement entirely. For some, puzzlingly, their change of heart resulted from discovering the identity of other signatories. But, as Malcolm Gladwell retorted, that was the point. In other words, the letter sought to bring together a range of intellectuals to reaffirm commitment to a modern Republic of Letters. 

We need open, rational discourse more than ever. As Justice Sandra Day O’Connor wrote in Harper and Row v Nation Enterprises, “The Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”

The First Amendment protects us from government censorship. But it is only copyright – among laws – that incentivizes authors to make the effort to perfect their writings and release them to the public. Copyright also creates the legal framework for publishing ventures such as that behind Harper’s Magazine. These platforms are as important as ever for authors to cut through the deluge of content on the internet.

Authors write for any number of reasons, and many of them do so without copyright serving as a direct incentive for them to do so. But what they choose to do with those writings is another matter. It is essential that we maintain a robust copyright system to incentivize thoughtful individuals to take the risk of overwhelming backlash and publish their ideas for the benefit of our civic discourse. 

Sean M. O’Connor is professor of law and executive director of the Center for the Protection of Intellectual Property at George Mason University’s Antonin Scalia Law School.