A thorough review of the many varieties of economic analysis may be found inPeter Menell, “Intellectual Property:General Theories,” (forthcoming 2000).
The Center for the Study of Innovative Freedom (C4SIF) is dedicated to building public awareness of the manner in which laws and policies impede innovation, creativity, communication, learning, knowledge, emulation, and information sharing. We are for property rights, free markets, competition, commerce, cooperation, and the voluntary sharing of knowledge, and oppose laws that systematically impede or hamper innovation, especially those enforced in the name of defending “intellectual property,” such as patent and copyright; these should be radically reformed or entirely abolished.
It took several centuries for public discourse to evolve a coherentway of balancing the property claims of print publishers with the society'slegitimate claim to have access to cultural works and knowledge. In littlemore than three decades, the discourse on copyright has been challengedin ways in which the first writers of copyright laws and the most prominentphilosophers of property rights could not have imagined. It is hard toimagine John Locke responding to droit morale issues such as theartist's right to prevent colorization of films, the reinstallation ofcontemporary sculptures, or the effect of remodelling a building on thearchitect's reputation. All of these cases involve copyright issues.
My central contention in this paper is that settling intellectual propertyquestions requires us to attend to the development of the technology ofintellectual production and to an ongoing social discourse about the productionand value of knowledge and culture. I think these two social processes,technology and discourse about the status of knowledge, are always at workin the emergence ethical problems about copyrightand I think they are also the place to look for solutions. If I am rightthen policy arguments which proceed primarily by a retrieval of abstractthought on the metaphysical principles of property are inadequate. I willdemonstrate my thesis first by showing that our basic understanding ofcopyright is itself a product of clashes between technological developmentand social discourse about the value of knowledge and culture. Then I willdiscuss efforts which focus either exclusively or primarily on a retrievalof property rights talk. I find Edwin Hettinger's work particularly importantin this regard, because I think he has a keen sense of the inadequacy oftraditional arguments about property rights. Finally, I will show how newcopyright policy can be forged by attending to the actual social processes(both technological and conversational) which create our difficulties inthe first place.
Modern copyright laws, which recognize, as a matter of moral principle,a limit to the monopoly which control of copy entails, begin with the Statuteof Anne in 1709, subtitled, "An Act for the Encouragement of Learning,by Vesting the Copies of Printed Books in the Authors or Purchasers ofsuch Copies, during the Times herein mentioned." The act first gavelegal expression to the idea that the social value of disseminating informationand culture was great enough to justify limiting the property interestsof publishers. The act also prepared the way for an author's copyright.
In discussing utilitarian justifications for copyright, which are byfar the most persuasive, Hettinger claims that he finds it paradoxicalthat a right which restricts access to intellectual property could actuallypromote intellectual production. I agree that there is nothing necessaryabout this relationship. Historically, great intellectual production occurredin the absence of any notion of copyright whatever. However, in the contextof a market economy, it is not at all paradoxical that incentives, whichmay require copyright protection, might promote activity. If people areindeed motivated by the prospect of gain, and if gain is only possiblethrough a control of copying, then a restriction of some uses of intellectualproperty might really promote production.
The second argument is right on the mark and correctly identifies theethical tension between individual and social values which lies at theheart of copyright ethics. It also supports Hettinger's basic intuition,with which I also agree, that justifying intellectual property by appealto the natural rights tradition is not as simple a matter as some wouldhave us believe.
In arguing against the claim that recognizing an absolute (perpetualand unrestricted) copyright is necessary to guarantee an individual's humandignity, Hettinger is quite persuasive. But some of the arguments aboveare not very persuasive. While I agree that the non-exclusivity of intellectualobjects is an important logical feature of them, it does not follow fromtheir nonexclusivity that the widespread availability of a copyrightedwork would not limit the uses its author might make of the workif he were entitled to exploit the profitability of the work. Ofcourse, that is not an argument that the author is so entitled, but Hettinger'sargument is only valid if one has already excluded "earning money"as one of the legitimate uses of the object.The question of whether limiting the profitability of the object is justifiedis still open. Therefore, we would do well not to base our arguments ona conception of non-exclusivity which begs the answer to that question.
Hettinger concludes by arguing for greater government funding of intellectualactivity and by urging that public ownership of intellectual property mightreplace private ownership. I think this proposal makes a certain amountof sense in some areas: for instance, if a company gained exclusive rightsto a database which, because it was constantly changing, could in effectbecome perpetually copyrighted, we might make a strong argument that themonopolistic effect of such a system justified its regulation. This isin fact what occurred in the case of the copyright clearinghouses for therecording industry. Also, I think the government might be too uncritical(or just not business wise) in disclaiming rights to the results of theresearch which it currently finances.
Hettinger argues that natural rights arguments justifying intellectualproperty are weaker than one might suppose, for the following reasons:1) Intellectual objects are "nonexclusive;" they are not consumedby their use. Since sharing them in no way hinders one's personal use ofthe object, the burden of proof falls on those who would justify theirexclusivity. As Hettinger puts it, "Why should one person have theexclusive right to possess and use something which all people could possessand use concurrently?;" 2) Thereis a fundamental and longstanding ethical tradition recognizing the socialvalue of free (or at least affordable) access to information; 3) Propertyrights guarantee people an interest in the value added to an object bytheir acts of labor. But in intellectual objects it is impossible to determinewhat portion of the object the author deserves a property interest in."A person who relies on human intellectual history and makes a smallmodification to produce something of great value should no more receivewhat the market will bear than should the last person needed to lift acar receive full credit for lifting it."4) In a market economy driven in part by information, one might argue thatcopyrights are a means by which individuals provide for their survivaland security. But since most copyrights are owned by institutions, Hettingerfinds this argument unpersuasive. In addition to these arguments, he arguesthat copyrighted works may violate Locke's proviso against waste and spoilage(if the copyright holder charges an excessive fee, for instance), but sincethat argument depends upon argument 1 above, we do not need to addressit specifically.
A government program for funding intellectual and artistic productionshares some features with the older patronage system under which authorsworked for centuries. Government patronage might be abusive or liberating,depending upon the circumstances. If the funds are given to professionalswith a tradition of academic freedom, like university professors or independentartists, perhaps the results would be good. Of course, governments haveinterests that may be expressed in funding decisions no matter who therecipient is and governments may have to observe restrictions in fundingdecisions that private patrons do not (consider the recent NEA controversiesover government funding of the arts). But the general claim that privatecopyright should be weakened by re-introducing a patronage system for intellectualproduction is quite reactionary. After all, the traditional system forintellectual production was based on such a patronage system (variouslycontrolled by guilds, aristocracies, church and state). Whatever the dangersof proprietary authorship, it emerged in the seventeenth and eighteenthcenturies partly because intellectuals wanted to be free from the constraintsof a patronage system.