The Internet has created an existential crisis for copyrights. Well, not really. It has impelled some people to consider, for the first time, the rationale for copyrights and the legal protection of them. That sounds a lot less dramatic and thrilling than “existential crisis,” though.
The two frameworks
There are two basic frameworks for thinking about copyright law: deontological and utilitarian. Deontological approaches focus on rights and duties. Utilitarian approaches focus on the usefulness of copyrights in promoting or accomplishing some social good.
In simpler terms, we can think of copyrights as deserving of protection because respecting individual property rights is a moral good. That is the deontological way of thinking about them. On the other hand, we can think about protecting copyright in terms of how protecting copyrights benefits society – the greatest happiness for the greatest number of people. That is the utilitarian approach.
Generally speaking, European countries have tended toward the deontological, while the United States has tended toward the utilitarian. Droites de suite, the rights of an artist to attribution and integrity (the rights to be credited as author and to the preservation of the integrity of a created work) originated in Europe. The United States Constitution, by contrast, declares that the purpose of giving authors and inventors exclusive rights is simply “[t]o promote the Progress of Science and useful Arts,” (U.S. Const. Art. I, sec. 8(8)), a clearly utilitarian expression of the rationale for protecting intellectual property.
These are just generalities, of course. The amendment of the U.S. Copyright Act to include protection for the integrity and attribution rights of visual artists is an example of how the European approach has been “coming to America.” At the same time, European policy-makers are increasingly influenced by utilitarian ways of thinking.
The difference between the two approaches comes into sharp relief in the area of Fair Use. Viewing copyright as a personal right and infringement as a moral wrong, the concept of “fair use” is difficult to justify. Instead, resort is usually had to utilitarianism, the idea that infringement of individual rights can be justified if it makes a lot of people happier (the “public benefit” consideration in fair use analysis.)
The nature of the right
German law developed on a view of copyright as a personality right. Personality rights are recognized to some extent in American law, too. In the United States, however, only a person’s name, voice and likeness are considered to be elements of a person’s “personality.” The products of one’s mind, the works the person creates, are not. Those things are considered property rights in the United States.
Among those who view copyrights as property rights, there is a divide between those who view them as natural rights and those who view them solely as creatures of positive law. John Locke is the most celebrated proponent of the natural rights theory. Proponents of the positive law approach (as I call it, for purposes of this blog post) do not view authors’, artists’ and inventors’ rights as inalienable natural rights, but as rights the law will protect if and only to the extent that a government sees fit to create a law protecting them.
Proponents of the view that copyrights are solely the creatures of positive law, of course, measure the value of copyright protection in terms of public benefit. If, for example, they think that an Internet free from the restrictions of prohibitions against copyright infringement will make a great number of people happy (“public benefit”), then they will likely advocate for laws and interpretations of laws favoring a broad and expansive “fair use” exception to copyright protection.
The slack of utilitarian tension
Differences of opinion can arise among those who adopt the utilitarian approach to copyright because a variety of conflicting arguments about what will best promote the greatest happiness for the greatest number of people exist.
On one hand, there is the incentive theory expressed in the Intellectual Property Clause of the U.S. Constitution. The idea expressed there is that giving creators rights in their creations will ultimately lead to scientific and artistic progress. Protecting copyrights might not be enough to incentivize creativity but failing to protect them can be a disincentive to creative effort.
Conflicting with this, there is the argument that allowing more people to access and use other people’s ideas and inventions facilitates progress. This is the thought behind Open Source and other approaches focusing on the benefits of social collaboration in the development of ideas and inventions.
Anyhoobie, that is the nutshell version of the philosophy of copyright. Feel free to explore the subject in greater depth on your own. Philosophy can be fun, right? Right?
Who Am I?
That, too, is a great philosophical question. In my case, it is easy to answer. Cokato, Minnesota attorney Thomas James.