Let’s get things started with an overview of copyright. Most people start off these kinds of discussions with the what of copyright – what is protected, what is the length of protection, etc. I’m more interested in the why. Learning that Title 17 of the US Code governs copyright, which is authorized by Section 8 of Article 1 of the US Constitution doesn’t give much insight into analyzing the hot-button issues we hear about every day.
Of course, there’s a lot of passionate debate over the nature and justification of copyright. What follows is my attempt to present what many scholars view as the prevailing framework for US copyright law.1
The Metaphysics of the law2
Before we get into copyright, let’s think for a moment about property in general.3 We grasp the basics of property easily. If you buy something, it becomes yours. You can use it, abuse it, sell it, or give it away. So why is it that when you buy a DVD, the FBI warns you that you can’t copy it?
The problem is that copyright protects something abstract, intangible. It’s a struggle to imagine ideas like rights or ownership over something you can’t touch.4 But the idea of property itself is abstract and intangible. All property is conceptual: your house, your car, your things. If you looked at any of this stuff under a microscope, you could discover their physical properties, but there’s nothing inherent in their physical nature that expresses the idea that they belong to you.
Property is best described as a relationship between people, things, and the law. These relationships create recognition of certain rights and interests between people and things. If you buy a bicycle, you have an ownership and a possessory interest in it. If a thief steals your bike, the law recognizes that you are the owner and allows you to recover it through the police or the courts. Nowadays, these relationships can be very complex, with different people holding different rights and interests in the same piece of property.5
Once we establish that property is conceptual, it’s just as easy to apply it to intangibles. You can buy and sell stocks and bonds. Banks buy and sell mortgages, and many companies sell debts to collection agencies. You can see these things represented on paper or a computer screen, but they don’t materially exist. Now, think of two different albums on CD. The CD’s themselves are physically almost identical (minus whatever is printed on them), yet each will give you a completely different experience when you press play. Imagine instead that you only have one album, but you have it on CD and on a vinyl record. If you press play on both, you’ll hear pretty much the same music, yet the two items couldn’t be more different physically. There is something that exists independently of the media.
Going way back to 1791, a German philosopher by the name of Johann Gottlieb Fichte said
We can distinguish two aspects of a book: its physical aspect, the printed paper, and its ideational aspect. The ownership of the former passes indisputably to the buyer upon purchase of the book. He can read it and lend it as often as he likes; he can re-sell it to whomever he wishes, and for as much or as little as he wants or can get; he can tear it to pieces or burn it — and who could quarrel with him? But since people seldom buy a book for such purposes, and most seldom of all simply to display its paper and printing and cover the walls with it, they must assume that when they buy a book they are also acquiring a right to its ideational aspect. This ideational aspect is in turn divisible into a material aspect, the content of the book, the ideas it presents; and the form of these ideas, the way in which, the combination in which, the phrasing and wording in which they are presented.6
In other words, any creative work consists of the tangible medium, the intangible ideas represented in the medium, and the intangible form of those ideas – or expression – represented in the medium. By establishing the existence of intangibles in a creative work, we can next look at the relationships that arise between people and those intangibles, as well as any rights and interests that may be recognized.
If you want two chairs, you have to buy two chairs – it’s not possible (yet) to create copies of physical items. But expression is intangible and abstract. It can be copied infinitely, either by hand or through technology. In a competitive, free-market economy, the result is that the price of any expressive work will ultimately be driven down to the marginal cost of the work – how much it costs to reproduce and distribute. This is great for consumers in the short term – free movies and music for everyone! But it’s troubling for those who wish to create new expressive works. Why would you spend the time and money creating new works if you have to compete on the same playing field as those who don’t have those costs?
This serves as the basis for the economic justification for copyright. By legally recognizing a temporary monopoly on the reproduction and distribution of expressive works, we allow creators the opportunity to recoup the costs of creating new works.
Like many areas of law, copyright did not begin as a highly principled approach to promoting knowledge and culture. However, the economic justification has long been established. In 1841, British historian and politician Thomas Babington Macaulay described it in a speech to the House of Commons –
The advantages arising from a system of copyright are obvious. It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated; and the least objectionable way of remunerating them is by means of copyright. You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men for works which require deep meditation and long research. Works of that kind you can expect only from persons who make literature the business of their lives. Of these persons few will be found among the rich and the noble. The rich and the noble are not impelled to intellectual exertion by necessity. They may be impelled to intellectual exertion by the desire of distinguishing themselves, or by the desire of benefiting the community. But it is generally within these walls that they seek to signalise themselves and to serve their fellow-creatures. Both their ambition and their public spirit, in a country like this, naturally take a political turn. It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.
The Founding Fathers embraced this mindset decades earlier, and the result was the Copyright Clause of the US Constitution. It gives Congress the power to grant copyright – but in a departure from other grants of power, it includes a purpose: the promotion of the progress of the useful arts and sciences. The Founders recognized that knowledge and culture are hallmarks of a democratic society, as important as commerce, justice, or the common defense. We promote these through many ways: public schools, libraries, government grants. Copyright is an additional way to promote it. It gives incentives to those outside the wealthy and leisure classes to pursue and perfect their craft, which in turn, advances knowledge and culture for all of us.
Describing a model for the basis of copyright is only the first step. As with any model, we have to ask “is it working?” How can we tell if it’s working? What specific laws do we implement to make it work?
The challenge with copyright is balancing its goal of promoting the progress of the arts for the general public with the fact that it is, after all, an anticompetitive monopoly. We want to ensure continued dissemination of new works while at the same time protecting creators of new works.