An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent and Encouragement Theory

130 Pages Posted: 20 Apr 2020

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Date Written: April 16, 2020

Abstract

Hostility to copyright has a long and honorable history. In the nineteenth century, for example, Lord Macaulay argued that while copyright might be necessary to ensure a "supply of good books," the monopoly that it imposed was at best a necessary evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.'

A number of studies critical of intellectual property followed in our century. The most well-known is probably the economically oriented 1970 study by Stephen Breyer (then a professor, now a federal appellate judge) who argued that the "case for copyright protection is weak," particularly as applied to certain classes of works. The trend has continued. In 1988 William Fisher published a lengthy article recommending that the "fair use" doctrine be reformulated to deny enforcement of copyright claims that conflict with particular economic or utopian goals. Even more recently, Tom Palmer has attacked all intellectual property as illegitimate for giving rights beyond what would be available under the common law of tangible property and contract.

Most of the critics of intellectual property have not challenged the concept of private property in other contexts. This pattern is the reverse of what might be expected, since many of the most common criticisms addressed to the institution of private property are less applicable to authors' claims over their works. For example, private property has been strenuously criticized on the ground that it impedes full human development by allowing workers to be separated from the fruits of their labor. Patent and copyright, by contrast, extend the power of creative persons to control what they have made. Nevertheless, in some quarters intellectual property has been hard put to hold its own.

The special burdens scholars place on copyright may have their origins in public perception. There is often a distrust of copyright when its compulsions conflict with the usual expectations people have of the freedoms they should be entitled to exercise over their physical possessions. In everyday experience, when people who buy records, video cassettes, and computer programs are told not to use their own home machines to make copies of them, or when radio listeners are told it might be unlawful for them to tape music off the air, there is often a feeling of unfair restriction. Another source for popular unease regarding intellectual property is that one need climb no fences to make copies of intellectual products. The restraints are obviously artificial, making the state's hand visible in a way a physical barrier does not. One knows one is doing something wrong when one tries to sneak into a neighbor's house or pick the lock of another's automobile; it may not seem so obviously wrong to tape a musical recording or duplicate a computer program that is already in hand. In addition, an act of copying seems to harm no one. There is no perceptible loss, no shattered lock or broken fencepost, no blood, not even a psychological sensation of trespass. As a result of all these factors, ordinary citizens may perceive a copyright owner's intangible interest as imposing an "extra" restriction, limiting their liberty in a way that ordinary property does not.

Legal scholars show a parallel unease. Although lawyers and theorists have long recognized that property is not a matter of touchable "things" but rather a set of rules governing human relations in regard to resources,' some commentators are concerned that certain objects of intellectual property law are not sufficiently "thinglike" to be the subject of "ownership."' Thus, doubts about copyright often have a remarkably spatial dimension. For example, Justice Holmes opined: [Copyright] restrains the spontaneity of men where but for it there would be nothing of any kind to hinder their doing as they saw fit. It is a prohibition of conduct remote from the persons or tangibles of the party having the right. It may be infringed a thousand miles from the owner and without his ever becoming aware of the wrong.'

Running through much of the commentary seems to be the perception, whether spoken or unspoken, that intellectual property is somehow a "sport," a statutory exception to the common law pattern, imposing unique restraints on liberty. Some critics seem to think that, as a moral matter, consent by the individuals affected is the only sufficient ground for imposing legal restraints on copying.' As with the lay perception, at bottom there seems to be a feeling that having intellectual property rights is less natural than having tangible property rights, and that somehow the compulsions inherent in copyright require special justification.

One can further speculate about the reasons for such an attitude. History may fuel it. In England and on the Continent, governments sometimes did grant "exclusive rights" over printing and manufacture for unsavory ends, such as censorship.' In my view, the origins of intellectual property raise questions quite separable from the issue of its present functioning; but the circumstances under which the doctrines first appeared may leave a residue of doubt. Also, it is conceivable that a preference for physical over intangible claims reflects unchangeable aspects of human psychology. Or the attitude may simply be a habit of mind left over from a simpler age, when reprographic technology, and laws to control it, were not part of everyday life.

Whatever its sources, the unease with intellectual property has conceptual components that this article will analyze. For example: Are the compulsions of intellectual property really different from what appears in other areas of the law? What importance should tangibility have? Has the perception that intellectual property is "different" pushed scholars to judge the institution by inappropriate or unduly demanding criteria?

The question of appropriate criteria is raised in particular by the economic commentary on intellectual property, where a search for special justification is discernible. That economics should be a focus of attention is unsurprising, since both copyright and patent law are seen as serving primarily economic incentive functions. What may be surprising is that economic critics have spent relatively little time examining how copyright facilitates the evolution of economic markets, as compared with the attention they have devoted to examining flaws in the markets that have evolved. In particular, academic critics have expressed strong concern that intellectual property's incentive effects for encouraging new works might be too weak to outweigh its so-called "monopoly" effects on resource allocation. Despite inconclusive empirical evidence, a fairly wide range of encouragement-oriented commentary centers on the possibility that the institution of intellectual property is not carrying its economic weight.

This article will address three issues inherent in intellectual property criticism: (1) the descriptive question of whether the structure and function of intellectual property is essentially different from, or consistent with, the patterns found in other areas of the law; (2) the normative question of whether copyright should be condemned because it imposes state-enforced restraints on potential copiers; and (3) the normative question of the proper role that economic analysis should play in justifying copyright. On the first issue, I will show that the perception of difference is largely erroneous and that copyright is actually more consistent with the common law pattern than a lack of copyright would be. On the second issue, regarding the evils of compulsion, I will argue that consent cannot stand alone as a criterion of moral adequacy. On the third issue, economics, I will show that the special economic tests to which most critics subject copyright are premised on questionable foundations. In my view economics provides an important descriptive tool for understanding the operation of copyright law, and certain economic criteria can even provide useful guidance in interpreting some areas of ambiguity or "open texture" in the current statute. But I argue that "wealth maximization," as an aggregative criterion that disregards the possibility of independently derived individual rights, cannot serve as an acceptable foundation for the initial assignment of entitlements. The article concludes that inquiries based on consistency, consent, and economics do not impair, and often offer affirmative support to, the legitimacy of intellectual property.

There are other important issues, notably the possibility that intellectual property rights may inhibit freedom of speech. Plaintiffs in several recent copyright infringement suits appear to have been motivated at least in part by the copyright owner's desire to silence personally objectionable views, to forestall discussion of a subject the copyright owner wanted kept out of the public eye, or to control public perception of the copyrighted work. Copyright law currently contains doctrinal protections for the free speech of copyright defendants, such as the "fair use" doctrine, and it would be worthwhile to discuss whether additional limitations are mandated by the public's first amendment entitlements. This article, however, pays little attention to the first amendment question. Though it is my belief that the public interest in free speech should indeed "trump" conflicting intellectual property rights in appropriate cases, the quest for a determinate set of criteria capable of identifying all such cases of conflict would take us too far afield from my inquiry into copyright's general legitimacy.

Thus, this article concerns itself with a limited set of questions, such as: whether it is appropriate to place on intellectual property a special burden of justification not imposed on other forms of property; whether the burden most often placed upon intellectual property, that it prove itself economically, is itself justifiable as applied by those commentators whom this article dubs the "encouragement theorists"; and whether the alternative proposed by intellectual property opponents has any clear claim to superiority. Even so limited, the field of inquiry is broad. To keep the discussion within manageable bounds, the discussion will focus on copyright law and will refer to other intellectual property doctrines (such as patent and trademark) only for comparison.

The article is divided into three parts. Part I is primarily descriptive. Responding to the perception of some critics that copyright and its kindred doctrines are out of kilter with the common law, Part I draws many structural and functional parallels between copyright and the common law of tangible property and torts. Among other things, I suggest that the set of boundaries provided by copyright serves largely the same functions as the physical boundaries of tangible property. Part I also gives persons previously unfamiliar with intellectual property law an overview of the area. Overall, Part I addresses the question of copyright's consistency with common law patterns.

Part II briefly surveys several alternative legal structures for handling intellectual property questions. Opponents of intellectual property typically argue that members of the public should be privileged to copy any work freely as long as they violate no independent law (such as restraints arising out of tangible personalty law, privacy law, or contract) when they obtain and make copies. Part II compares this option, which I denominate "copy-privilege," with other structural alternatives and shows why it is the one most often favored by intellectual property opponents.

Part III, the heart of the piece, presents a primarily normative comparison between copyright and copy-privilege, its most likely competitor. The first two sections of Part III deal with consent theory. The part begins by showing how the nature and sources of authors' power over their works would differ in a world with copyright and in a hypothetical world where the only restraints on copying were those contractually agreed upon. I then advance the following propositions: The noncontractual restraints imposed by copyright are of the same nature as those imposed by other areas of the law; the central role played by the user's consent in copy-privilege does not make that regime morally superior to copyright; and the state's imposition of noncontractual restraints on resource use does not per se necessitate more justification than does the state's refusal to intervene.

Part III then turns to the economic arguments. Rather than attempt to redebate the inconclusive empirical evidence, the discussion outlines the logic underlying most efficiency arguments against copyright. I argue that the normative base of the "encouragement" theory is not dictated by the foundational premises of welfare economics, and that it lacks any principle of distributional justice sensitive to individuals' claims as individuals. Further, I show that the distributional principle which, if normatively acceptable, would come closest to justifying "encouragement" theory's results is itself at odds with the common law -including the doctrine in restitution law that volunteers and intermeddlers should ordinarily have no right to compel payment for their efforts. I also suggest that the "encouragement" critics take a position that is fundamentally at odds with moral notions of desert. Finally, I show that copy-privilege is inherently arbitrary, making the relations between authors and users depend largely on serendipitous physical circumstance, while copyright pays due respect to the intangible domain.

Through the route I have described, I seek to demonstrate intellectual property's legitimacy. I aim not to show that all forms and extensions of authorial rights are good or desirable, but that the decision to give creators some legal rights to control or be paid for certain uses of their creations embodies the same kind of structural, functional, and normative choices that are sewn into the legal fabric elsewhere.

Suggested Citation

Gordon, Wendy J., An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent and Encouragement Theory (April 16, 2020). Stanford Law Review, Vol. 41, No. 6, 1989, Available at SSRN: https://ssrn.com/abstract=3577855

Wendy J. Gordon (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-4420 (Phone)
617-353-3077 (Fax)

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