I. Introduction

How many times have we heard that the United States copyright tradition is incentive-based, that it grants “limited” monopolies to stimulate innovation and artistic creativity for the ultimate benefit of the general public good? This essay aims to show that the two theoretical assumptions underlying the copyright system – i.e., (i) copyright provides the economic incentive that is essential to the expression and creation of new works and (ii) the ultimate goal of the copyright-as-incentive theory is to serve a public purpose, namely to broaden the amount of literature, music and other arts in the public domain – cannot be sustained given the legal and social realities of the copyright regime, both past and present.

II. Copyright: an economic precondition for creative activity?

Today, the standard American explanation for copyright is utilitarian-based. The creative individual is caricaturized as a “rational profit-maximizer” whose willingness to invest in the creative process is directly linked to the expected amount of private returns through exclusive rights.

However, as explained by Diane L. Zimmerman, empirical research in psychology and behavioral economics tends to suggest that the primary motives for the expression of human creativity are inherently intrinsic rather than induced by the prospect of financial reward. This assumption that “genius does not require copyright to produce” can be backed up by two arguments, one based on history, the other on modern realities. First, many of the world’s most esteemed writers, musicians, artists and inventors (e.g., Shakespeare and Plato) created long before the advent of intellectual property. Secondly, recent studies have shown that modern creativity can hardly be linked to the hope of achieving economic success given its slim monetary return, especially in light of the current economic downturn. The innate nature of creative expression is accurately described by the following music-related metaphor, which may be extrapolated to all forms of creativity: “Birds sing [create] to act birdly; humans sing [create] to act humanly” (E. Moglen).

Furthermore, the results of neuropsychology research suggest that not only is the motivation to create independent from economic incentives but also, and more importantly, the promise of financial rewards through copyright may prove detrimental to creative performance. An often advanced explanation for such deterrent effect is the theory of self-determination, which is premised on the idea that a creative individual’s performance decreases when its sense of being controlled by external forces (here, monetary incentives) increases.

III. Copyright has fallen out of balance

If, contrary to common understanding, the primary motivation for creative work does indeed lie within one’s inner being and is not the result of mere economic inducements, then, the so-called balance that the Copyright Clause seeks to achieve through an incentive-based copyright system has been, since its inception, grounded on a flawed premise. In other words, the law’s tools (i.e., the granting of “limited” statutory monopolies) are not only unlikely to further encourage the desired legal outcome (i.e., the enrichment of the public domain by incentivizing creativity) but are also such as to undermine the said outcome by harming creative performance. The copyright system, because falsely premised, was thus already unable to withstand scrutiny in its original form.

Furthermore, even if we adhere for the purpose of discussion to the copyright-as-incentive theory, the system of exclusive rights, as it stands today, is no less subject to critical assessment. If balance (between on the one hand, the incentives needed to spur creativity and, on the other hand, the public interest in freer access to the past cultural heritage) is what the drafters of the American Constitution strived to achieve, then, copyright law, if ever at equilibrium, has completely fallen out of balance. Since the 1990s, Congress has enacted several pieces of legislation which have had the effect of substantially reducing the scope of the “cultural commons” through an ever increasing protection of copyright holders. For one, the term of copyright protection, initially limited to a maximum of 28 years (Copyright Act of 1790), has been significantly broadened by Congress so as to currently include the life of the author plus seventy years (Sony Bono Copyright Term Extension Act of 1998). One fails to understand how, as suggested by Congress, the severe contraction of the public domain resulting from a life + 70 regime is likely to be offset by an increased incentive to create new works. As pointed out by Macaulay in 1841: “(...) [A]n advantage that is to be enjoyed more than half a century after we are dead, by somebody, we know not by whom, perhaps by somebody unborn, by somebody utterly unconnected with us, is really no motive at all to action (...)”. The extended term of protection thus blatantly reveals the political situation that surrounds the shaping of copyright legislation, namely one which is prone to excessive private-interest influence by the copyright industries at the cost of present and future consumers.

Congress’s assault on the public domain has even been taken one step further, or (dare we say it), one step too far. In keeping with a requirement of the Berne Convention, Congress restored copyright protection in foreign works that had entered the public domain in the United States for specified reasons (Section 514 of the Uruguay Round Agreements Act of 1996). This legislation affects not only the scope of the public domain but also, and more importantly, the very notion of the public domain as an irrevocable and inviolate collection of cultural works that supports creativity and the dissemination of knowledge on a vast scale. In its upcoming decision in Golan v. Holder, the Supreme Court is asked to determine whether Congress violated the Constitution by allowing such privatization of public knowledge goods. At the very moment when advances in Internet technologies allow for a broad range of creative expression and a low-cost distribution of public domain materials on a massive scale, one can only hope that the Court will finally put an end to Congress’s excesses in connection with a system of exclusive rights which, as such, is inherently unjustifiable.

-- MelissaGotlieb - 03 Nov 2011

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