Intellectual Property Copyright
The Law of Intellectual Property is complex and diffuse, however whilst the writing on this subject has been extremely deep and rich in variety it is marked by a distinct lack of such contextual depth by legislators and the judiciary. Whilst judges in cases such as Hogg v. Scott and Millar v. Taylor tacitly assume the classical liberal approach that has widely been discredited, other such cases like Mazer v. Stein quite clearly show a preference towards the public-interest mainstream arguments. This moral confusion in itself might provide a reason for not justifying copyright but the aim of this essay is to extract the various strands of justifications and critiques to come to an abstract yes or no answer to the question of whether copyright is morally justifiable.
Classical Liberal Paradigm
The classic, and one of the most often cited, justifications for the imposition of intellectual property in society, first articulated by writers such as John Locke and Lysander Spooner, is that when someone applies they're intellect to come up with something novel then 'the right of property in them belongs to him, whose labour created them'. This is a form of natural law argumentation that gives an author a moral right to vested property rights in his creation merely by dint of the fact it was his labour that went into the creative process. This justification is not without its modern proponents such as Tom Bell and Justin Hughes however there have been many critics; two of the most prominent are Hettinger and Martin. The natural law arguments are generally split along distinct lines of arguments. The most famous one of these is the Hegelian argument about self-expression. Hegel saw the concepts of property, freedom and self-expression as inter-related, a person defines himself by his relationship with the physical and social world:
'A person exercises his or her freedom (or autonomy) by controlling physical objects as well as information. Denying a person control over property is one way of restricting that person's autonomy'
This certainly excavates some of our more innate feelings about property rights, they have always been seen as a reflection of their owner, the size of a house reflects a persons earnings &c if someone pours enough of themselves into a piece of property whether corporeal or intellectual there is an intuitive appeal to arguing it belongs by virtue of that self-expression to the author. However, it is within the same intuitive appeal that the Hegelian argument has failed, taken to its logical extreme this would mean that every single act we did in relation to the external world for example making a pile of leaves was an act of self-expression that automatically vested us with property rights. The problem with the argument is that it makes no distinctions between creations that require a lot of self-expression and those that require very little, copyright holds no such requirement of self-expression and this argument also suffers from a lack of explanation of collaborative creations, do we measure authorship in the perceived notion of which party has put the most self-expression in?
The second strain of argumentation lies in what is commonly called the 'labour' theory; this is the idea that when a person has exerted himself in creating something novel that someone has a natural right to that creation. This is a lot closer to the original Lockean position that puts the idea of labour at the centre of the natural right. This was essentially the argument of the Stationers in the nineteenth century in justifying copyright, previous property is seen as unowned and labour as a method of 'staking out' that unowned territory to themselves.
Alfino quite rightly points out that both arguments in the end 'dovetail' and contain the same proposition that through intellectual labour an 'original acquisition of a profitable object'is made.
The main criticism levelled at the liberal paradigm is that there is no rationale for supposing that people have some sort of vested right in their own creations. Hettinger points out:
'The value added by the labourer and any value of the object has on its own are by no means the only components of the value of an intellectual object'
There are no truly original ideas or discourses, according to Hettinger, therefore whilst certainly labour is to be rewarded and encouraged as a social good, in the end new ideas are ultimately social in origin and therefore owe more of its value to society than it does to anyone individuals labour. Hettinger isn't dismissive of the labour theory as a whole however he is certainly dismissive of it as a wholesale justification for the existence of copyright. There have been further critiques of the natural rights ideal, where is the moral justification in the extraction of profit from the exclusivity of copyright? Traditional natural law theory provides no ethical basis for this, Hettinger has quite rightly pointed out that the non-exclusive nature of intellectual property ( i.e. the very fact that any number of people can hold it at any one time) distinguishes it from corporeal property and thus gives it less moral backing this on top of the considerable social goods from access to information and the former argument about the social origin of intellectual creations means quite clearly that the natural law arguments fail. Cahir, furthermore, has undermined the natural law reasoning by analysing the interest it is trying to protect. He rejects the idea that property rights represent a way of a person gaining the value of their creation in the market-place because the idea of labour having some form of value has been discredited in neo-liberal economic discourses and he furthermore rejects the idea that the natural right implies that a person have sole dominion over his property and any possible uses because it is impossible to limit the experiences or the remembering of intellectual creations by other people.
Copyright as property right entitles the author to monopolistic control over the piece and thus one of the rights it entails is for the author to receive full market value for a piece of property that is to a large degree socially produced. The obvious liberal comeback is that authors whilst not naturally entitled might have some other form of deserts. In other words an author deserves a reward for their labour. This is a common theme in the pro-copyright argument as it is seen as getting around the fallacies in a natural 'rights' theory. It is seen as society paying back the debt that they owe for the time and effort that an author has expended in creating a piece of intellectual property rights. This argument has the attraction that the workings of the market-place mean that there will be a direct correlation between the profit made by the author and the value society places on those pieces of work, therefore society guarantees reward to musical or literary artists because the work is seen as deserving reward whereas someone randomly taking pictures whilst inheriting copyright will have no value attached to them and therefore the reward will be roughly correlative to the effort expended. What is important to remember here is that it is the reward that is important and is not be confused with incentive arguments which will be discussed below. However, on a reading of the argument the distinction between natural 'rights' theories and reward theories seems to be a tautology in that when we begin to question why is it that authors deserve 'rewards' for their work then we are ultimately lead back to natural rights considerations. It is this reason that many of the works in this area fail to make a serious distinction between reward theories and natural rights theories and is ultimately flawed for the exact same reasons as argued about above.
Therefore Lockean arguments are to be rejected because they are insufficient to morally justify the imposition of property rights in the form of Copyright.
Mainstream Justifications
The 'Public-Interest Narrative' is premised on utilitarian ideals and has at its heart an economic theory of copyright and can be formulated as follows:
'Public goods have characteristics because of which the free market does not produce them in optimal quantitiesIn a free market, the final price of the book would cover only the marginal cost of the copying, thereby running the risk that authors will no longer write books'
This has been the major driving force behind intellectual property regulation in the 20th century as evinced by its use in interpreting the US Constitution, in the UK's Whitford Committee that reviewed copyright law and in the European Directive on harmonisation of copyright protection. In effect then copyright promotes the wider good of society by coming up with an artificial form of scarcity that is existent already in natural corporeal things, thus allowing the free market to attach a value higher than the costs of production. Drahos has been a large proponent in re-invigorating this approach to justification of copyright as he believes that some of the critiques below are not valid however as we will see his ideas are not as extensive as might be assumed and are certainly not watertight. This dominant theory of copyright, and intellectual property, is premised on the utilitarian ideal that such artistic creations are a societal good and that the economical incentive placed on it will therefore increase the lot of the majority of people even if it disadvantages some people. In the proceeding passages I will analyse the various forms of arguments that have been advanced against an incentive-based theory.
This overarching view has been widely challenged however is still highly pervasive at judicial and political level. Cahir suggested that its pervasiveness is due to the perception by many that copyright and other intellectual property rights is worth so much to the economy and has a lot of jobs contingent on them that the thought of reform or questioning the basis of our system is highly unlikely. The major criticism of the mainstream view is attacked by writers using the arguments of Rawls, primarily that utilitarian arguments such as here premised do not provide sufficient allowance for rights and distributive justice. Resnik uses the example that when selling copyright to a publisher the author doesn't relinquish the right to be cited as the author. Most people would argue that this is fair however this must be on a non-utilitarian basis because it is far from obvious that this policy is likely to promote social utility. It could be argued that the right to be credited meets utilitarian ideals in that it provides a further incentive for authors to create, this argument is wholly unsatisfactory because as we've seen the utilitarian ideal places its eggs in the economic bag, therefore the incentive it is justifying is economic gain and the right to be credited as author could in theory be worth even more value to the real author if it was alienable. These criticisms enlighten two potential issues, namely that utilitarianism is not the guiding moral justification, and therefore copyright is without a moral basis, something which is surely unjustifiable. Also it raises the arguments that Nozick advanced that laws 'predicated on achieving a goal at the expense of person's rights' are unjustifiable per se. What has to be remembered is that we do not live in a utilitarian society; generally our law has a highly liberalistic tendency. The classical aim of law is to achieve a liberal space defined by legal rules within which people's rights are inviolate. Intellectual Property rights contravene individual rights to access information. A lot of intellectual property theorists tend to overlook this point, it is imperative to remember that Lockean liberalism arguments are not identical to the whole liberal agenda. Drahos attempted to argue that utilitarian ideals and economic approaches to the law could be reconciled with such critiques as these by arguing econo-utilitarian arguments could promote the same values as natural rights theorists such as Nozick and Cahir. This argument doesn't strike me as forceful because there are no guarantees that they do and in reality they don't support the same aims. The monopolistic nature of copyright prevents the cohesion of values.
The next criticism is that the use of an economic justification is illusory. The first somewhat obvious premise is that copyright dates from its earliest sort of creation in the mid-sixteenth century however the quantity of literature produced prior to this date is hardly quantifiably less than that produced after the introduction of copyright. Further more Bell argues that things such as car bodies, furniture, clothes designs and perfumes all don't inherit copyright or any form of intellectual property right under US law and therefore how rational is it to state that other innovative products would fail. The economic rationale also doesn't account for the fact that many authors create works for non-material reasons such as love of a subject or the desire for fame. In a classic article Breyer furthermore argued that the whole economic rationale that underlies this mainstream justification ought to be questioned; Bently and Sherman present the classical reason why the free-market, the otherwise greatest regulatory tool in the world, would fail in respect of Intellectual Property. The reason is ostensibly that the costs of reproduction are relatively low therefore a competitor, without copyright protection, would be able to reproduce at an infinitely smaller cost and undercut both the publishers and the authors, this would effectively make the market value the negligible costs of reproduction. However as Breyer articulated it, this rationale isn't totally infallible, although initially appealing, the author has the advantage of his copy being the first on the market, he also has advantages in that he can print original copy on the work, can have high standard of publication quality and can lower his prices when copies start to come onto the market. Van den Bergh has argued that this critique whilst a strong one may not be in itself a sufficient reason to abandon copyright but merely to change its characteristics, he argues that the free-market argument could have some adverse consequences in that there would be a shift to works that could produce profit in a short period of time like a shift towards more novels and away from academic textbooks and advertising may be kept to a minimum reducing public awareness.
Vaver also called this justification the 'third myth' of copyright justification, he didn't even question whether the claim was true but continued to point out that the statement, whether true or not, is only as valid as the individual or collective authors will. The fact that copyright is non-discriminatory flows from the simple fact that judges and lawyers are not literary critics and not justified to state what is and isn't valuable to society therefore copyright in the promotion of social utility grants copyright to almost everything that is written down. Thereby the right of copyright can equally serve non-moral ends in that the copyright system is a monopoly that vests the property right to exclude others from use and thus can be used as a method of preventing access to information.
One last criticism of incentive-based theories can be seen in a wider rejection of utilitarian arguments. One strand of these can be emphasised in John Rawls' rejection of utilitarianism as not taking 'seriously the distinctions between persons', the use of utilitarian arguments belies a general movement in legal theories towards more deontological theories which look at the distribution of societal 'goods' and pay more attention towards individual rights. A further criticism is that for utilitarian reasoning to be justified there has to be an empirical basis for the maxim, developing worlds such as India have quite clearly shown that they believe many aspects of copyright to be counter productive to the social good such as we discussed above in the right of an author to retain property to themselves as a secret and that in general intellectual property rights have to be 'true to the socio-economic, developmental, technological and public-interest priorities and needs of developing countries'. In this paradigm, in fact developing countries provide a positive argument to reject copyright and argue that utilitarian reasoning implies a reverse situation that it is in the social good for all intellectual property to be freely available to society even if that is at the expense of a few authors not being given incentive to write. The important question is whether the economic model espoused is sufficiently true to prevent this reversal being justified, the problem is that copyright law sufficiently recognises that there are deontological concerns such as the argument presented above about the right to retain authorship or the right not to use the product, these aren't grounded in utilitarian reasoning but in the language of rights. It seems that legislators and those making money out of intellectual property recognise these limits but without any rationale for the interplay of deontological rights and the utilitarian social goods, the very failing Rawls identified as a problem with traditional utilitarianism. It seems this causes a major problem because as discussed in the previous section, justifications based in rights language has its own problems but a hard-line utilitarian stance does not make a coherent justification for copyright in the way it is used in modern society, this leaves us in somewhat of a moral vacuum as far as moral justifiability of copyright goes. I am inclined to argue that there is definitely something there worth protecting, our intrinsic feelings are vindicated and it is almost beyond argument that most works are a social good however the protection scheme seems to be based on a somewhat infantile theoretical basis which is yet to find a sophisticated theory that explains some sort of interplay between individual rights and society.
The Public Interest narrative as presented here has come under even more persistent fire in that it is totally unreflective of reality. The major problem is that legislators are more affected by lobbying groups and industries that will receive a benefit than the public interest when instituting a system of copyright law, therefore the utilitarian ideal is merely a stealthy way of clothing what is an immoral or perhaps amoral form of regulation. Furthermore, private individuals once vested with a property right are less likely to respect the ideals of utility than to treat it as an end in its own right. This selfish view is more likely to be justified by the Lockean Labour theory than by utilitarianism and yet as mentioned earlier is the widely stated rationale in judicial reasoning.
Anti-Copyright Discourses
Thus far we've discussed the discourses that have been advanced to justify copyright but we have to further in our discussions and actually point out that not only are we in a moral vacuum when it comes to justifying copyright but furthermore there are good ethical reasons to actually reject copyright. These 'IP Skeptics' are far from being a radical sort of movement and share a legacy that began with the nagging doubts that gnawed at Justice Yates in Millar v. Taylor. Justice Yates described copyright as a 'phantom' he fundamentally underlined his statement by stating:
'Their whole existence is in the mind alone; incapable of any other modes of acquisition or enjoyment, than by mental possession or apprehension; safe and invulnerable, from their own immateriality'
Throughout the whole early stages of copyright typified by struggles such as was present in Millar, there has been a distinctive feeling about copyright that its intangible nature makes it at the very least sui generis which has competing demands of the claim of society on ideas and thought and the more selfish claims as premised by Locke, and tacitly assumed by the Lord Mansfield in the majority in Millar. Bringsjord has a very intuitive ethical argument that since we have this intuition that some forms of copying are permissible then all forms are permissible because there are no ethical distinctions between forms of copying. This theory is attacked because it bypasses the aims of copyright, however when Alfino places this critique before us he uses the aims of the copyright system to say the moral underpinning of a copyright system is sufficient to vitiate our intuitive feelings. However, as this essay shows, the moral justifications are at the very least unpersuasive in whole. This leaves Bringsjord's argument in a favourable light in that the lack of moral basis for the foregoing right provides a reason for rejecting copyright as there are no ethically distinct reasons for granting monopoly rights. This is most certainly the tacit assumption of certain writers such as Martin, Vaver and Drahos. They consistently argue on the flaws of the existing justifications with the tacit assumptions rather than articulating an argument why copyright is morally objectionable.
However the lack of ethical framework hardly seems a good enough reason to reject copyright outright. This leaves a niche for writers such as Resnik to circumvent all the above criticisms and merely argue that because one justification does not suffice then we have to embrace a pluralistic theory of copyright. These admittedly minority of writers who still support copyright present an argument that obliterates any such abandonment of copyright as the 'IP Sceptics' argue for. They admit all the criticisms, in fact add to them, however they argue that all these arguments do is to point the way forward to a pluralistic law of copyright:
'To resolve IP disputes, one must weigh and balance the different values that are at stake in the situation and determine which one should have priority'
However, other writers such as Cahir and Martin offer further solutions such as abandonment or other forms of regulation. I find the discourses in this area very weak, there is a vast depth of literature on rejecting the classical justifications of copyright but no real consideration of the effect of that rejection. Does the rejection of all moral justifications outright reject the combination of them as competing principles? If the initial question of this essay is does copyright have one single moral justification the answer is surely no however if the question is does copyright have any moral justification then the answer is less clear. This lack of clarity is so noticeable because some people believe reform of copyright will meet the criticisms whereas others believe it needs to be abandoned. The question of whether to reject copyright on any moral basis therefore has to be premised on a clear understanding of the nature of copyright. This has been largely overlooked, the general view is typified by a presumption that the monopolistic nature of copyright is key, this argument maybe overlooks exceptions such as 'fair use' and the reality of copyright law but certainly it is seen on both sides of the fence as the defining characteristic of copyright. On this basis therefore, I have to reject Resnik's pluralistic account because it is simply unintuitive to argue that a combination of flawed justifications will allow copyright to operate freely. The point Justice Yates made in Millar v. Taylor has its routes in a deep seated feeling that society has a right to information in order to progress and is manifested in modern day by the attitudes of third-world countries towards western countries. When supporters of copyright talk about a pluralistic approach they aren't talking about developing a coherent theory of anti-copyright morals but rather taking into account the piecemeal objections to the existing justifications and pitting them against each other in a judicial setting. I would argue this is not adequate because rejection of copyright is required for safety reasons. Until we find a way of reconciling the distinctive claims of society and individuals that are represented just granting the rights to individuals is as arbitrary as not. Law as an institution is liberal and should err on the side of leniency and as such the dubiety over moral justifiability ought to lead to a rejection.
Books
Bently, Lionel & Intellectual Property Law 2004 / OUP / 2nd ed.
Sherman, B
Colston, Catherine Principles of Intellectual 1999 / Cavendish
Property Law
Drahos, Peter Intellectual Property 1999 / Ashgate/Dartmouth
Drahos, Peter A Philosophy of Intellectual 1996 / Ashgate/Dartmouth
Property
Thierer, Adam & Copy Fights 2002 / Cato Institute
Crews, Clyde
Articles
Alfino, Mark Intellectual Property and Copyright Ethics (1874) LR 18 Eq. 444
Please note: The above essays and dissertations were written by students and then submitted to us to display and help others. Thanks to all the students who have submitted their work to us.
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