The Philosophy of the United States Copyright System Under Scrutiny

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?

Why is this a good opening note? The actual answer does not matter, and the mere signaling of a note of skepticism is not worth the devotion of the most important spot in the entire essay.

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.

Surely we can do better for drawing the reader in than one rhetorical question and one 81-word sentence that states an unremarkable thesis in a crabbed fashion? How about:

Copyright law doesn't serve the purposes for which it's supposed to be useful. It doesn't provide an essential incentive for creative activity. It doesn't serve the public purpose of enriching the public domain. It didn't work in the past and it's working even less now.

Shorter sentences create more energy for the reader, rather than depleting her supply as she marches through subordinate clauses. By saying clearly what we are saying, we allow both ourselves and the reader to measure our commitment: what have we said that we're going to have to prove? In this instance, phrasing more clearly should also make you more cautious, because you're going to have a devil of a time making good on what you say here.

II. Copyright: an economic precondition for creative activity?

Today, the standard American explanation for copyright is utilitarian-based.

Are you sure? I would have said that the utilitarianism of the justifications has a tendency to run out, to be replaced by natural law deontology, as soon as one begins to point out the utilitarian limits to property rights set by requirements of distributive equity, which are crucially important to utilitarians and anathema to IP owners.

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.

No, in fact, because the predominance of work-for-hire relationships requires in fact that the creator be thought of most of the time as a waged worker who has bargained away all right of control in return for a wage. Only in exceptional conditions is it necessary to resuscitate the otherwise incompatible idea of the Author, possessed of anything approach moral entitlements.

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.

Are we actually arguing on the basis of the history of all human creativity before the year 1704 and almost all of it after, on the one hand, and the experience of "the current economic downturn" on the other? Presumably we would be able to notice that the second is mere fluff in relation to the first.

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).

Surely we can do without a quotation from the teacher here? The essay will not be impeded in its flow or quality if it is not used for apple-polishing.

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.

This argument proves way too much. It has no limitation to the sphere of copyright, after all. If we are seriously to regard all human creative production as uncorrelated with material reward, we have quite a mass of daily evidence to ignore and much social policy of every kind to change. Indeed, such a result is so fundamental, so extraordinary, that it fairly requires, I think, extraordinary proof. It cannot be established, at any event, with a breezy reference to some second-hand account of interesting but by no means so sweeping neuropsychology experiments.

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.

No. In the first place, it might make sense to interpret the intentions of the people who made the Copyright Clause by reference to the Copyright Act many of them then immediately made. When we consider that it covered only books and maps, for fourteen years, which could be renewed for another fourteen years only if the author was then living. How that policy was understood can be defined partly by reference to the past history of English copyright, partly by reference to the policy views of those Americans (Franklin, Jefferson, Gallatin, among others) who most directly affected the literary and scientific policy of the early republic. How it cannot be effectively interpreted is by taking generalizations commonplace more than 200 years later and reading them back as "premises" for action taken by very differently-motivated actors in the past.

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.

Based solely on a tenuous and doubtfully-rooted claim about the nature of motivations for production. This ignores altogether that the real reasons copyright has become both irrelevant to its purposes and harmful to the public domain have to do instead with revolutionary changes in the mechanisms of distribution. The effort to show that copyright law never achieved its purposes in the past—by assuming that the arguments of the present were the arguments of the past, and the purposes of legal institutions never change very much over the course of centuries—is difficult, maybe impossible. The very durability of the institution suggests that some people are finding it more useful than other people are finding it obnoxious. But even harder, it seems to me, would be trying to address the current tensions over whether copyright should survive and in what form without observing that the primary issues arise from radical change in distribution systems. This is true even with respect to the forms of decentralized anarchist production in free software and free culture communities, which are only enabled to pursue their forms of creativity because of the frictionless distribution systems that tie their communities together.

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.

This is indeed, from my point of view, a fair criticism. But it doesn't seem to me addressed anywhere. Those who believe there is no place in the future for copyright are long past this point in the argument. Those who support ownership because their bread is buttered on that side have no difficulty rejecting your argument: they aren't, after all, bound by any particular justification of their "property." Once their interest in excluding others from knowledge and culture has been successfully reified, they need only appeal to the general rights of property, raising the specter of the appropriation of everyone else's everything if they are crossed, and make an occasional purchasing effort in the venal legislature to secure "extension" of their terms. Anything they want to do they can say the award of more property gives them an incentive to do, and provided they can purchase enough Congressmen, who is to say them nay?

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.

But I very much doubt that you can show that the "very notion of the public domain" has ever been as "an irrevocable and inviolate collection of cultural works that supports creativity and the dissemination of knowledge on a vast scale." Some people have thought that some of the time, no doubt, but I don't think that's a legal principle of any kind. I think the legal definition of the public domain is extremely sketchy and uncertain. I would say that the closest one could come would be to say that, after 1976, the public domain is the residual future interest postponed to copyright. If that's correct, copyright restoration may not only be inherently constitutional, given the "Congress may do anything its owners pay a majority to do" result in Eldred v. Ashcroft, it may even be consistent with the health of the public domain. The public domain, as the free software movement has pointed out since the beginning, is not the same thing as freedom.

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.

On what basis would the Court take such a step? That's the same as overturning all the available precedent, making a complete instability of the law, without the slightest justification in the presence of narrower arguments for deciding the case.

Surely we can agree that even if copyright law has ceased to perform any useful function, and is solely a generator of deadweight social loss, that wouldn't justify the Supreme Court in nullifying it? Congress is afforded a power to make copyright law within very broad general terms, and the Court has held unmistakably in Eldred that those terms are not words of limitation—that within their general bounds the authority of Congress is plenary. The Court has said twice, and has thus made constitutionally very difficult to imagine overturning, that copyright law made by Congress pursuant to its express power comports with the First Amendment so long as it reserves fair use and preserves the idea/expression distinction. You haven't made any argument that these constitutional limits have been overstepped. (I'm not at all sure that's impossible, but if there are good arguments you didn't produce them.) On what principle of judicial power would the Court be acting if it took the step you suppose?

I think, as I said when we last spoke about this, that the place to begin is not with "philosophy," a much-abused word which in this instance means mostly, I think, not talking about anything of which we have direct experience.

But our direct experience of society changing under the influence of the Net is precisely where we will find new ideas, ones that we can use in turn to understand society and its changes better. Theory has value—value literally in this context beyond price—only because it helps us turn the fruits of our observation into wisdom.

Let's begin from what we see in the people around us, and come to our view of the legal situation organically, rather than starting from the narrative established by power, which we are constantly encouraged to mistake for reality.