Earlier this month, the US Copyright Office held a two day public roundtable on the issues of orphan works and mass digitization.
During one of the panels, a brief side debate broke out over what the purpose of copyright law was—particularly, what the proper role of the public benefit is and how much weight it should be accorded.
The first participant essentially quoted the Betamax decision’s description of public benefit.1 There the Supreme Court said:
The copyright law, like the patent statutes, makes reward to the owner a secondary consideration… The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.
In response, a panelist refuted characterization of reward to the owner as a “secondary consideration”. Disagreement arose. A separate panelist tried to make peace by remarking that both panelists’ explanations of the public benefit come from Supreme Court opinions. Maybe this is a case of agreeing to disagree.
But consider this: the Supreme Court refuted Sony‘s description of the public benefit of copyright in the much more recent Eldred v. Ashcroft. There, the majority said:
JUSTICE STEVENS’ characterization of reward to the author as “a secondary consideration” of copyright law, understates the relationship between such rewards and the “Progress of Science.” As we have explained, “[t]he economic philosophy behind the [Copyright] [C]lause … is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.” Accordingly, “copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge…. The profit motive is the engine that ensures the progress of science.” Rewarding authors for their creative labor and “promot[ing] … Progress” are thus complementary; as James Madison observed, in copyright “[t]he public good fully coincides . . . with the claims of individuals.” JUSTICE BREYER’s assertion that “copyright statutes must serve public, not private, ends,” similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.
Well sure, the copyright skeptic might respond, that’s all well and good. But the Supreme Court only has authority over the law; it’s ruminations on matters of philosophy are not binding.
But consider this: Eldred‘s description of the public benefit is, as the Court notes, a direct descendant of the justification offered by James Madison, the very drafter of the Constitution’s Copyright Clause.
The description of the public benefit in Sony, on the other hand, comes from the misquotation of a state sales tax case.
Yes, Sony directly quotes Fox Film Corp. v. Doyal, a 1932 Supreme Court case, about the “sole interest of the United States.” In Fox Film, a film company sued to prevent the state of Georgia from collecting state tax on its income from licensing films. The film company argued that copyrights are “instrumentalities” of the federal government, so any income derived from them are immune from state taxation.
The Court disagreed. The federal government doesn’t retain any possessory or ownership interest in a copyright it secures. A copyrights is not a “franchise or privilege to be exercised on behalf of the Government ” Instead, “Copyright is a right exercised by the owner during the term at his pleasure and exclusively for his own profit and forms the basis for extensive and profitable business enterprises. The advantage to the public is gained merely from the carrying out of the general policy in making such grants and not from any direct interest which the Government has in the use of the property which is the subject of the grants.”
So when the Fox Film Court speaks of “the sole interest of the United States”, it is merely making the distinction that the federal government does not retain any right or title in a copyright such that license income would be exempt from state taxation. But the Court would later take this quote out of context,2 and Sony perpetuates this error. Indeed, the above quote from Fox Film about the advantage to the public is more consistent with Eldred‘s explication of the public interest than Sony‘s.
So what is the point here?
Copyright skeptics will often proclaim that copyright law must serve the public interest. But that is not controversial. Of course it should serve the public interest; all laws should serve the public interest.
What is overlooked is how copyright serves the public interest. Skeptics will focus on how exceptions to and limitations on copyright further the public interest. Missing is the inherent public interest in copyright, in preserving incentives to create and disseminate expressive works.
Like any free market, enabling a free market in creative works tends toward the public good. Copyright is the economic building block of this market, allowing voluntary transactions to occur and private ordering to emerge. It encourages investment in creating and distributing the types of works that advance society and enrich our lives, the types of works that shouldn’t be considered an afterthought.
Some will suggest that creators will create and disseminate works even without copyright protection. This counterfactual is unconvincing. That there are creators who will create and distribute their works despite adequate copyright protection is a demonstration of human resilience, not an affirmation that society can continue to benefit while artists, authors, and creators are undermined.
So yes, let us celebrate the public benefit of copyright, let us celebrate how the profit motive serves as the engine ensuring the progress of science. But let’s not confuse the short term gains of ignoring copyright with the public benefit, or focus solely on the benefits of copyright’s limitations at the expense of the public benefit of protecting creators’ rights.