Saturday, January 11, 2014

Class 1: Introduction to Copyright

What is Copyright?

Copyright is a form of intellectual property that protects works of authorship. But what is intellectual property? Essentially, intellectual property is a term for a class consisting of forms of property that protect certain intangible objects. In other words, intellectual property protects ideas and expressions. Put another way, intellectual property enables a person to prevent another person from using an idea or expression without permission.

United States law recognizes many forms of intellectual property, each of which protects a different kind of intangible object. For example:
  • Patents protect inventions
  • Copyrights protect works of authorship
  • Trademarks protect brands
  • Trade secrets protect private information
  • Rights of publicity protect celebrity
Intellectual property is created by both federal and state law. Patents, copyrights, and trademarks are created and protected primarily by federal law.  Trade secrets and rights of publicity are created and protected primarily by state law.

Copyrights protect works of authorship or particular expressions of ideas. This class will focus on copyrights created and protected by federal law, but will touch on copyrights created and protected by state law, as well as other intellectual property interests. The nature and scope of protection provided by copyright has changed over time. This class will consider how and why those changes occurred, and what they mean.

The History of Copyright

Modern copyright originated in the Statute of Anne, 8 Anne, c. 19 (1710), which replaced the Licensing of the Press Act, 14 Car. II. c. 33 (1662). The Licensing of the Press Act effectively gave the Stationers' Company, a publishers guild, a monopoly over publishing. In 1765, Parliament refused to renew the Licensing of the Press Act, so the Stationers' Company proposed a new statute emphasizing the rights of authors, rather than publishers, which eventually became the Statute of Anne.

The preamble to the Statute of Anne stated its purpose:
Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing, Reprinting, and Publishing, or causing to be Printed, Reprinted, and Published Books, and other Writings, without the Consent of the Authors or Proprietors of such Books and Writings, to their very great Detriment, and too often to the Ruin of them and their Families: For Preventing therefore such Practices for the future, and for the Encouragement of Learned Men to Compose and Write useful Books; May it please Your Majesty, that it may be Enacted...
The Statute of Anne granted authors a "copyright," or the exclusive right to print and sell copies of their works for a limited period of time. The copyright term was 21 years for works published before 1710 and 14 years with a renewal term of 14 years for works published after 1710, after which the work would enter the public domain. Copyright belonged to the author of a work as soon as it was published and registered with the Stationers' Company, but the author could license the work to others. Of course, the Stationers' Company assumed that authors would license their works to publishers, effectively preserving its monopoly.

When the copyright term of works published before 1710 began to expire in 1731, the Stationers' Company pressed Parliament to extend the copyright term. When Parliament refused, the Stationers' Company turned to the courts. Over the course of many years, the Stationers' Company filed a series of actions arguing, inter alia, that copyright was not created by the Statute of Anne, but by the common law, and that common law copyright was perpetual.

In 1769, the King's Bench heard the case of Millar v. Taylor, 4 Burr. 2303, 98 ER 201 (1769), in which Andrew Millar, the publisher of James Thomson's The Seasons (1730), sued to prevent Robert Taylor, a competitor, from publishing reprints. William Blackstone presented the plaintiff's argument that perpetual copyright exists under the common law. A majority of court agreed with the publishers, holding that "an Author should reap the pecuniary Profits of his own Ingenuity and Labour." The dissenting judge argued that perpetual copyright would create a virtual monopoly to the detriment of the public and would not be "an encouragement of the propagation of learning."

Millar sold his copyright in The Seasons to a group of publishers that included Thomas Becket. In 1774, the House of Lords heard the case of Donaldson v. Beckett, 2 Brown's Parl. Cases 129, 1 Eng. Rep. 837; 4 Burr. 2408, 98 Eng. Rep. 257; 17 Cobbett's Parl. Hist. 953 (1774), in which Becket obtained an injunction against Alexander and John Donaldson printing unlicensed copies of The Seasons. The House of Lords reversed Millar, holding that no copyright exists under the common law and that works enter the public domain when the statutory copyright term expires. "Knowledge has no value or use for the solitary owner: to be enjoyed it must be communicated."

After Donaldson, the Statute of Anne remained in force until it was repealed by the Copyright Act of 1842 (5 & 6 Vict. c. 45).

  1. Should copyright be perpetual or have a limited term?
  2. What would justify perpetual copyright? 
  3. What would justify a limited copyright term? 
  4. If copyright should have a limited term, how long should it last?
Copyright in the United States

The Constitution authorizes Congress to create copyrights and patents. Specifically, the Intellectual Property Clause provides that:
“Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times, to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries.” United States Constitution, Article I, Section 10, Clause 8
The Copyright Act of 1790

On May 31, 1790, President Washington signed into law the Copyright Act of 1790, 1 Stat. 124 (1790), "An Act for the Encouragement of Learning, by Securing the Copies of Maps, Charts, and Books, to the Authors and Proprietors of Such Copies, during the Times Therein Mentioned." The Act was based on the Statute of Anne and granted a copyright to the author of any "map, chart, or book." It required registration with the clerk of the federal district court of the district in which the author resided, publication of a copy of the registration record, and deposit of the work with the United States Secretary of State.  The copyright term was 14 years from registration, with a renewal term of 14 years.  
The 1790 Act gave authors the exclusive right to "print, reprint, publish, or vend" a protected work, and to prohibit the unauthorized importation of copies, and allowed infringement actions for statutory or liquidated damages. It also protected unpublished manuscripts. However, it only protected works created by American authors. As a result, American publishers preferred to print and sell unprotected works by prominent British authors, rather than licensing works by lesser-known American authors.

In any event, the 1790 Act was not heavily used. Between 1790 and 1800, more than 15,000 works were published in the United States, but only 779 works were registered for copyright protection. Scholars have offered several explanations:
  1. piracy was uncommon;
  2. publishing was primarily a local business;
  3. most published works were by British authors; and
  4. copyright registration was too burdensome.
All of these factors probably affected copyright registrations.  In any case, most of the works registered during that period were practical or commercially useful, like textbooks, manuals, atlases, and directories

Wheaton v. Peters (1834)

The Supreme Court first considered the scope of copyright protection in Wheaton v. Peters33 U.S. (8 Pet.) 591 (1834). Henry Wheaton, the third Supreme Court Reporter, published an expensive annotated compilation of the opinions of the Court in twenty-four volumes. Richard Peters, the fourth Supreme Court Reporter, published an inexpensive abridged version of Wheaton's compilation in six volumes. Wheaton filed an infringement action in the Circuit Court of the United States for the Eastern District of Pennsylvania, which held that Wheaton's work was not protected by copyright because it was not properly registered under the 1790 Act and because no common law copyright exists under United States law. Wheaton v. Peters, 29 F. Cas. 862 (C.C.E.D. Pa. 1832).

Wheaton appealed to the Supreme Court, which affirmed in part and reversed in part, holding that common law copyright protected unpublished works, but the 1790 Act provided the exclusive form of copyright protection for published works, because no federal common law exists, so federal rights “originated, if at all, under the acts of Congress.”

Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834) 
Mr Justice M'LEAN delivered the opinion of the Court. 
* * *
The complainants assert their right on two grounds. 
First, under the common law. 
Secondly, under the acts of congress. 
And they insist, in the first place, that an author was entitled, at common law, to a perpetual property in the copy of his works, and in the profits of their publication; and to recover damages for its injury, by an action on the case, and to the protection of a court of equity. 
* * *
That an author, at common law, has a property in his manuscript, and may obtain redress against any one who deprives him of it, or by improperly obtaining a copy endeavours to realise a profit by its publication, cannot be doubted; but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work, after the author shall have published it to the world. 
The argument that a literary man is as much entitled to the product of his labour as any other member of society, cannot be controverted. And the answer is, that he realises this product by the transfer of his manuscripts, or in the sale of his works, when first published. 
A book is valuable on account of the matter it contains, the ideas it communicates, the instruction or entertainment it affords. Does the author hold a perpetual property in these? Is there an implied contract by every purchaser of his book, that he may realise whatever instruction or entertainment which the reading of it shall give, but shall not write out or print its contents. 
In what respect does the right of an author differ from that of an individual who has invented a most useful and valuable machine? In the production of this, his mind has been as intensely engaged, as long; and, perhaps, as usefully to the public, as any distinguished author in the composition of his book. 
The result of their labours may be equally beneficial to *658 society, and in their respective spheres they may be alike distinguished for mental vigour. Does the common law give a perpetual right to the author, and withhold it from the inventor? And yet it has never been pretended that the latter could hold, by the common law, any property in his invention, after he shall have sold it publicly. 
It would seem, therefore, that the existence of a principle may well be doubted, which operates so unequally. This is not a characteristic of the common law. It is said to be founded on principles of justice, and that all its rules must conform to sound reason. 
Does not the man who imitates the machine profit as much by the labour of another, as he who imitates or republishes a book? Can there be a difference between the types and press with which one is formed; and the instruments used in the construction of the others? 
That every man is entitled to the fruits of his own labour must be admitted; but he can enjoy them only, except by statutory provision, under the rules of property, which regulate society, and which define the rights of things in general. 
But, if the common law right of authors were shown to exist in England, does the same right exist, and to the same extent, in this country. 
It is clear, there can be no common law of the United States. The federal government is composed of twenty-four sovereign and independent states; each of which may have its local usages, customs and common law. There is no principle which pervades the union and has the authority of law, that is not embodied in the constitution or laws of the union. The common law could be made a part of our federal system, only by legislative adoption.
When, therefore, a common law right is asserted, we must look to the state in which the controversy originated. And in the case under consideration, as the copyright was entered in the clerk's office of the district court of Pennsylvania, for the first volume of the book in controversy, and it was published in that state; we may inquire, whether the common law, as to copyrights, if any existed, was adopted in Pennsylvania. 
It is insisted, that our ancestors, when they migrated to this *659 country, brought with them the English common law, as a part of their heritage. 
That this was the case, to a limited extent, is admitted. No one will contend, that the common law, as it existed in England, has ever been in force in all its provisions, in any state in this union. It was adopted, so far only as its principles were suited to the condition of the colonies: and from this circumstance we see, what is common law in one state, is not so considered in another. The judicial decisions, the usages and customs of the respective states, must determine, how far the common law has been introduced and sanctioned in each. 
In the argument, it was insisted, that no presumption could be drawn against the existence of the common law, as to copyrights, in Pennsylvania, from the fact of its never having been asserted, until the commencement of this suit. 
It may be true, in general, that the failure to assert any particular right, may afford no evidence of the non existence of such right. But the present case may well form an exception to this rule. 
If the common law, in all its provisions, has not been introduced into Pennsylvania, to what extent has it been adopted? Must not this court have some evidence on this subject. If no right, such as is set up by the complainants, has heretofore been asserted, no custom or usage established, no judicial decision been given, can the conclusion be justified, that, by the common law of Pennsylvania, an author has a perpetual property in the copyright of his works. 
These considerations might well lead the court to doubt the existence of this law in Pennsylvania; but there are others of a more conclusive character. 
The question respecting the literary property of authors, was not made a subject of judicial investigation in England until 1760; and no decision was given until the case of Miller v. Taylor was decided in 1769. Long before this time, the collony of Pennsylvania was settled. What part of the common law did Penn and his associates bring with them from England? 
The literary property of authors, as now asserted, was then unknown in that country. Laws had been passed, regulating the publication of new works under license. And the king, as the head of the church and the state, claimed the exclusive *660 right of publishing the acts of parliament, the book of common prayer, and a few other books. 
No such right at the common law had been recognized in England, when the colony of Penn was organized. Long afterwards, literary property became a subject of controversy, but the question was involved in great doubt and perplexity; and a little more than a century ago, it was decided by the highest judicial court in England, that the right of authors could not be asserted at common law, but under the statute. The statute of 8 Anne was passed in 1710. 
Can it be contended, that this common law right, so involved in doubt as to divide the most learned jurists of England, at a period in her history, as much distinguished by learning and talents as any other; was brought into the wilds of Pennsylvania by its first adventurers. Was it suited to their condition? 
But there is another view still more conclusive. 
In the eighth section of the first article of the constitution of the United States it is declared, that congress shall have power ‘to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.’ And in pursuance of the power thus delegated, congress passed the act of the 30th of May 1790. 
This is entitled ‘an act for the encouragement of learning, by securing the copies of maps, charts and books, to the authors and proprietors of such copies, during the times therein mentioned.’ 
In the first section of this act, it is provided, ‘that from and after its passage, the author and authors of any map, chart, book or books, already printed within these United States, being a citizen, &c. who hath or have not transferred to any other person the copyright of such map, chart, book or books, &c. shall have the sole right and liberty of printing, reprinting, publishing and vending such map, book or books, for fourteen years.’ 
In behalf of the common law right, an argument has been drawn from the word secure, which is used in relation to this right, both in the constitution and in the acts of congress. This word, when used as a verb active, signifies to protect, insure, save, ascertain, &c.
*661 The counsel for the complainants insist that the term, as used, clearly indicates an intention, not to originate a right, but to protect one already in existence. 
There is no mode by which the meaning affixed to any word or sentence, by a deliberative body, can be so well ascertained, as by comparing it with the words and sentences with which it stands connected. By this rule the word secure, as used in the constitution, could not mean the protection of an acknowledged legal right. It refers to inventors, as well as authors, and it has never been pretended, by any one, either in this country or in England, that an inventor has a perpetual right, at common law, to sell the thing invented. 
And if the word secure is used in the constitution, in reference to a future right, was it not so used in the act of congress? 
But, it is said, that part of the first section of the act of congress, which has been quoted, a copyright is not only recognized as existing, but that it may be assigned, as the rights of the assignee are protected, the same as those of the author. 
As before stated, an author has, by the common law, a property in his manuscript; and there can be no doubt that the rights of an assignee of such manuscript, would be protected by a court of chancery. This is presumed to be the copyright recognized in the act, and which was intended to be protected by its provisions. And this protection was given, as well to books published under such circumstances, as to manuscript copies. 
That congress, in passing the act of 1790, did not legislate in reference to existing rights, appears clear, from the provision that the author, &c. ‘shall have the sole right and liberty of printing,’ &c. Now if this exclusive right existed at common law, and congress were about to adopt legislative provisions for its protection, would they have used this language? Could they have deemed it necessary to vest a right already vested. Such a presumption is refuted by the words above quoted, and their force is not lessened by any other part of the act. 
Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it. This seems to be the clear import of the law, connected with the circumstances under which it was enacted. *662 
From these considerations it would seem, that if the right of the complainants can be sustained, it must be sustained under the acts of congress. Such was, probably, the opinion of the counsel who framed the bill, as the right is asserted under the statutes, and no particular reference is made to it as existing at common law. The claim, then, of the complainants, must be examined in reference to the statutes under which it is asserted.
 * * *
The act of congress under which Mr Wheaton, one of the complainants, in his capacity of reporter, was required to deliver eighty copies of each volume of his reports to the department of state, and which were, probably, faithfully delivered, does not exonerate him from the deposite of a copy under the act of 1790. The eighty volumes were delivered for a different purpose; and cannot excuse the deposite of the one volume as specially required. 
The construction of the acts of congress being settled, in the further investigation of the case it would become necessary to look into the evidence and ascertain whether the complainants have not shown a substantial compliance with every legal requisite. But on reading the evidence we entertain doubts, which induce us to remand the cause to the circuit court, where the facts can be ascertained by a jury. 
And the cause is accordingly remanded to the circuit court, with directions to that court to order an issue of facts to be examined and tried by a jury, at the bar of said court, upon this point, viz. whether the said Wheaton as author, or any other person as proprietor, had complied with the requisites prescribed by the third and fourth sections of the said act of congress, passed the 31st day of May 1790, in regard to the volumes of Wheaton's Reports in the said bill mentioned, or in *668 regard to one or more of them in the following particulars, viz. whether the said Wheaton or proprietor did, within two months from the date of the recording thereof in the clerk's office of the district court, cause a copy of the said record to be published in one or more of the newspapers printed in the resident states, for the space of four weeks; and whether the said Wheaton or proprietor after the publishing thereof, did deliver or cause to be delivered to the secretary of state of the United States, a copy of the same to be preserved in his office, according to the provisions of the said third and fourth sections of the said act. 
And if the said requisites have not been complied with in regard to all the said volumes, then the jury to find in particular in regard to what volumes they or either of them have been so complied with. 
It may be proper to remark that the court are unanimously of opinion, that no reporter has or can have any copyright in the written opinions delivered by this court; and that the judges thereof cannot confer on any reporter any such right.
The Court's holding that the 1790 Act, "instead of sanctioning an existing right, as contended for, created it," was controversial among legal scholars, many of whom believed that the common law did protect copyright. Eventually, the Court revisited the question holding, "that, while a right did exist by common law, it has been superseded by statute." Holmes v. Hurst, 174 U.S. 82, 85 (1899).

  1. Do you agree with the Court's conclusion that common law copyright does not exist?
  2. Should common law copyright exist?
  3. Which elements of Wheaton's work should be protected by copyright, if any?
The 1831 General Revision of the Copyright Act, 4 Stat. 436 (1831), extended copyright protection to musical compositions and increased the copyright term to 24 years, with a renewal term of 14 years.

The 1870 General Revision of the Copyright Act, 16 Stat. 198 (1870), extended copyright protection to paintings, drawings, chromolithographs, statues and statuaries, and "models or designs intended to be perfected as works of fine art." 

The Copyright Act of 1909

The first major revision of United States copyright law was the Copyright Act of 1909, 35 Stat. 1075 (1909), which increased the copyright term to 28 years, with a renewal term of 28 years. Under the 1909 Act, federal statutory copyright only governed original works of authorship published with a copyright notice. Accordingly, state copyright law governed unpublished works, and works published without a copyright notice immediately entered the public domain.

The 1909 Act also created the first compulsory license. While Section 1(e) of the 1909 Act granted copyright owners the exclusive right to reproduce a musical composition, it also provided that:
[A]s a condition of extending the copyrighted control to such mechanical reproductions, that whenever the owner of a musical copyright has used or permitted or knowingly acquiesced in the use of the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright proprietor of a royalty of 2 cents on each such part manufactured, to be paid by the manufacturer thereof.
Essentially, it permitted the public to record cover versions of musical compositions without obtaining the permission of the composer, and established a fixed licensing fee. Congress intended this compulsory license to govern the production of piano rolls, but it also applied to phonograph records, and eventually led to the formation of performing rights organizations like ASCAP and BMI

In addition, Section 27 of the 1909 Act codified the "first sale" or "exhaustion" doctrine, which permits the transfer of a lawfully obtained copy of a work without the consent of the copyright owner, providing that "nothing in this title shall be deemed to forbid, prevent, or restrict the transfer of any copy of a copyrighted work the possession of which has been lawfully obtained."

Notably, a report accompanying the 1909 Act stated that copyright is purely a statutory right and that it 
is conferred, "not primarily for the benefit of the author, but primarily for the benefit of the 
public." Report of the Committee on Patents to accompany H.R. 28192 (H. Rept. 2222, 60th Cong., 2d sess.)

Copyright Act of 1976

The second major revision of United States copyright law was the Copyright Act of 197690 Stat. 2541 (1976), which remains in force, with certain amendments and additions.  Section 302 of the 1976 Act increased the copyright term to "a term consisting of the life of the author and 50 years after the author's death," or seventy-five years term from publication for anonymous works, pseudonymous works, and works made for hire.

Section 102 of the 1976 Act extended copyright protection to "original works of authorship fixed in any tangible medium of expression," including:
  • literary works;
  • musical works;
  • dramatic works;
  • pantomimes and choreographic works;
  • pictorial, graphic, and sculptural works;
  • motion pictures and other audiovisual works; and
  • sound recordings.
Significantly, this change eliminated the publication requirement of the 1909 Act.  Under the 1976 Act, an original work of authorship is protected by federal copyright as soon as it is fixed in a tangible medium, whether or not it is published with a copyright notice.

Section 106 of the 1976 Act granted five exclusive rights to copyright holders:
  • the right to reproduce the work;
  • the right to create derivative works;
  • the right to distribute copies of the work;
  • the right to publicly perform literary, musical, dramatic, choreographic, pantomime, motion picture, and other audiovisual works; and
  • the right to publicly display literary, musical, dramatic, choreographic, pantomime, pictorial, graphic, sculptural, motion picture, and other audiovisual works.
These exclusive rights were limited by the remaining sections of Chapter 1. In particular, Section 107 codified the fair use doctrine, which provides that certain uses of copyrighted works do not infringe the exclusive rights of copyright owners.

Under previous versions of the Copyright Act, courts had applied the fair use doctrine under the common law. Broadly speaking, the fair use doctrine protects transformative uses of copyrighted works. For example, it explicitly protects the use of copyrighted works for the purpose of criticism, news reporting, teaching, scholarship, or research purposes. Application of the fair use doctrine requires a fact-specific inquiry, and Section 107 provides four factors that courts should consider when determining whether a particular use is a fair use:
  • the purpose and character of the use;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion of the original work used; and
  • the effect of the use upon the market for the original work.
Section 301 of the 1976 Act also explicitly preempted all preexisting United States copyright laws, including the 1909 Act, as well as any state statutory or common law copyright.

In 1990, Section 102 was amended to extend copyright protection to architectural works. In 1995, Section 106 was amended to include the right to perform a sound recording by means of digital audio. And in 1998, Section 302 was amended to increase the copyright term to the duration of the author's life plus seventy years for general copyrights and to ninety-five years for works made for hire and works created before 1978.

Other amendments to the 1976 Act, including the Digital Millennium Copyright Act112 Stat. 2860 (1998), addressed issues relating to new technologies, including the Internet.

  1. Should Congress have created copyrights? If so, why?
  2. How long should the copyright last?
  3. What kinds of works should copyright protect?
  4. What rights should copyright protect?
Justifying Copyright

The Intellectual Property Clause of the United States Constitution authorizes Congress to create copyrights and patents, but Congress was not required to exercise that authority. So, why did the Constitution authorize Congress to create copyrights and patents, and why did Congress choose to create them?

Recall, the Intellectual Property Clause provides that:
“Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times, to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries.” United States Constitution, Article I, Section 10, Clause 8
Arguably, the preamble of the clause itself explains why Congress is authorized to create copyrights and patents: in order to "promote the Progress of Science and useful Arts." In other words, Congress can create copyrights and patents because they encourage authors and inventors to create more works and inventions. But the preamble alone does not necessarily explain why copyrights and patents are justified. For example, why did the framers and ratifiers of the Constitution believe that copyrights and patents would encourage authors and inventors to create more works and inventions, and why did Congress agree? And, perhaps more importantly, do those beliefs justify the creation of copyrights and patents.

Notably, most scholars believe that copyrights are intended to promote "science" and patents are intended to promote the "useful arts." "Perhaps counterintuitively for the contemporary reader, Congress' copyright authority is tied to the progress of science; its patent authority, to the progress of the useful arts." Golan v. Holder, 132 S. Ct. 873, 888, 181 L. Ed. 2d 835 (2012). The term "science" is given its eighteenth century meaning of "knowledge or learning" and the term "useful arts" is given them meaning of "discoveries." Graham v. John Deere Co., 383 U.S. 1 (1966) (holding that useful arts and discoveries refer to inventors and patents). While we will focus on theories of the justification of copyrights, theories of the justification of patents are similar in many respects.

Theories of Copyright

Broadly speaking, there are two theories of the justification of copyright: the utilitarian theory and the natural rights theory. Of course, some people believe that copyright is not justified on either theory. But we will set that objection aside for the time being.

The Consequentialist Theory of Copyright

The prevailing theory of copyright is the consequentialist theory, which argues that copyright is justified because it increases welfare by increasing the creation of works of authorship. In other words, copyright provides an incentive for authors to create works of authorship, and the value of the additional works created is larger than the costs imposed by copyright protection. Scholars refer to this tradeoff as the quid pro quo of copyright, or the exchange of one thing for another thing. Essentially, the idea is that copyright is justified because the public provides copyright protection in exchange for additional works of authorship.

In many cases, the Court has endorsed the consequentialist theory of copyright. For example, in Mazer v. Stein, 347 U.S. 201, 219 (1954), it stated:
The economic philosophy behind the clause empowering Congress to grant patents and copyrights 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 in 'Science and useful Arts.' Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.
Likewise, in Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975), it stated:
The immediate effect of our copyright law is to secure a fair return for an ‘author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. ‘The sole interest of the United States and the primary object in conferring the monopoly,’ this Court has said, ‘lie in the general benefits derived by the public from the labors of authors.’
Indeed, the Court has even acknowledged the quid pro quo requirement, albeit tepidly. "If patent's quid pro quo is more exacting than copyright's, then Congress' repeated extension of existing patents without constitutional objection suggests even more strongly that similar legislation with respect to copyrights is constitutionally permissible." Eldred v. Ashcroft, 537 U.S. 186, 217 (2003).

But why should we believe that copyrights increase the creation of works of authorship? The consequentialist theory of copyright argues that works of authorship are public goods vulnerable to free riding in the absence of copyright. A public good is a resource that is non-rival and non-excludable. A good is non-rival if it can be consumed by an unlimited number of people, and is non-excludable if no one can be prevented from consuming it.

Economists generally assume that public goods are vulnerable to free riding, or consumption for less than the marginal cost of production. In other words, if people can consume a good for free without reducing the supply, they will not pay the cost of producing the good. As a result, producers of the good will not satisfy demand. Economists call this a "market failure."

Works of authorship are paradigmatic public goods because they are non-rival and non-excludable in the absence of copyright. In theory, copyright can solve market failures in works of authorship by enabling copyright owners to exclude consumers who cannot pay the marginal cost of production. In other words, copyright subsidizes authors by enabling them to charge monopoly prices for their works of authorship. For this reason, the consequentialist theory of copyright is generally an economic subsidy theory of copyright.

The Natural Rights Theories of Copyright

An alternative theory of copyright is the natural rights theory, which argues that copyright is justified because authors have a natural right to own their works of authorship. In fact, the natural rights theory of copyright divides into the Lockean labor theory and the Hegelian personality theory.

Under the Lockean labor theory of copyright, people have a natural right to their bodies, their labor, and the fruits of their labor. Works of authorship are the fruits of labor, so they are protected by natural law. As a consequence, authors are entitled to the profits generated by their works of authorship.

Under the Hegelian personality theory of copyright, people have a natural right to control the use of works that express their personality. Works of authorship express a person's personality, so they are protected by copyright. In particular, authors are entitled to enforce rights of attribution and integrity.

  1. Which of these theories of copyright do you find most convincing?
  2. What are the strengths and weaknesses of the consequentialist theory?
  3. What are the strengths and weaknesses of the Lockean theory?
  4. What are the strengths and weaknesses of the Hegelian theory?

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Copyright Law Casebook by Brian L. Frye is licensed under a Creative Commons Attribution 4.0 International License.
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