Copyright is so entrenched in popular thinking about the production and dissemination of culture that we may think of it as natural or inevitable. We may even drape it with mystical ideas about the creative process. To be sure, authors and artists have always had a special connection to their work. The seventeenth-century poet John Milton wrote that books "preserve as in a vial the purest efficacy and extraction of that living intellect that bred them." An anonymous author declared to the British Parliament in 1735, "If there be such a Thing as Property upon Earth, an Author has it in his Work."1
These claims were made, however, as polemical assertions in the midst of raucous debate, not as statements of established fact. In exalting authors as sources or owners, Milton and the anonymous author spoke against the “common sense” of their time, according to which an artist was most often honoured as a custodian and animator of collective tradition. Artistic and intellectual production understood in this collective way tended to be supported by a patronage system rather than by a system of individual rights or property. Alternative models do exist for encouraging and supporting cultural production (see chapter 18). We need therefore to think twice about copyright’s logic.
Established Philosophies of Copyright
Why should copyright holders have exclusive rights in their works? Copyright laws relate to two major lines of philosophical justification: rights-based theories and utilitarianism. Both of these approaches have advantages and limitations, and both of them are explicitly or implicitly represented in today’s copyright debates.2 The economic analysis that holds sway in many quarters today can be seen as a descendant of both lines of thought.
Yes: Disney created private property by taking a story from the public domain and adding its labour to that story. But Locke was talking about a world of limitless resources. In his Second Treatise of Government (chapter 5, section 33), he wrote: “No body could think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left him to quench his thirst.”
Are fairy tales a limitless resource? Does Disney’s taking of them leave less for others? Those are questions that Locke invites us to ask. Copyright law has developed distinctions between “rival” and “non-rival” goods, and between ideas and expression, in order to answer questions such as these. While Disney can “own” its version of the story, copyright law holds that such ownership only extends to the new elements that the studio adds. The story itself has to be left free for others to use as well.
Rights-based theories are rooted in ideas of natural law. Proponents of natural law believe that the law exists independently, separate and apart from legislation that has been posited by any particular state. While natural law may be associated with a religious world view, it can also appeal to an abstract moral authority, such as justice. The principles of natural law are expressed in documents such as the Magna Carta and the French Declaration of the Rights of Man. The claim from the American Declaration of Independence "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights" is a good example of natural law philosophy. More generally, the idea of “human rights” is derived from a natural law approach: rights come from “nature or nature’s God,” as the Declaration of Independence puts it, not from a particular ruler or government.
A natural law approach to property would hold that a person has a natural entitlement to his person and to the fruits of his labours. The most well-known expositor of this philosophy is John Locke, who in his Second Treatise of Government (1690) set out a theory that justifies the private appropriation of public resources.3 While Locke was writing about the appropriation of physical resources (that is, land and things), his work has come to be applied to intellectual labour as well. Locke begins with the premise that "the 'labour' of [a person's] body and the ‘work’ of his hands, we may say, are properly his." Then he says that whatever a person "removes out of the state that Nature hath provided and left it in, he hath mixed his labor with it and joined to it something that is his own and thereby makes it his property."4
In a Lockean view of copyright, the labour supplied by the author provides a justification for a claim to exclude others – even if the author is working with materials previously available to all. A claim that copyright ought to be perpetual could also be justified by reference to Locke, because property rights in physical resources are perpetual.
Interestingly, Locke also specified two limitations on the right to appropriate from the commons. First, he stated that the appropriation must leave as much and as good for others; second, he did not consider ownership legitimate when individuals appropriated more than they could use.5 Locke was also explicitly opposed to perpetual copyright.6 Thus, whether we are talking about tangible property or intellectual property, Locke may provide justification both for owners' rights and for limitations to them.
On some level many people may think of copyright as a "natural" right because it just seems “fair” that authors should hold rights in work they have created. But the courts, in the Anglo-American tradition, do not see it this way. In the seventeenth century, English courts held that acts of Parliament were subject to the constraints of natural law, often understood to be embodied in “common law,” or the accumulated collection of precedent from specific legal cases. In Dr. Bonham’s Case (1610), the court said that the "common law will control Acts of Parliament, and sometimes judge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void.7 But after 1688 acts of Parliament were thought to be supreme: in other words, the law was understood to lie in what the government had expressly promulgated, enacted, or "posited." In the realm of copyright, this "positive law" viewpoint was confirmed in the 1774 case Donaldson v. Becket.8 In this case a divided House of Lords affirmed the limited copyright term of the Statute of Anne over claims of common-law perpetual copyright, rejecting the notion of a "natural" copyright separate and apart from the statute.9 Thus, while today’s justifications for copyright law are often rooted in the thinking of natural law, Anglo-American law now operates predominantly according to positive law principles.
–William Fisher, “Theories of Intellectual Property,” 188–89.
Still, rights-based or natural law theories do continue to play a more central role in the civil law systems that originated in Continental Europe, brought to Canada through French law.10 Civil law systems place more emphasis on the individual rights of the author as a person, and tend to view copyright as an extension of the personality of the author. Canadian law represents a blending of English and French traditions, and Supreme Court cases in particular often reflect a combination of the two.
Utilitarianism is another major stream of justification of copyright. As a general school of thought, utilitarianism is generally attributed to the nineteenth-century English philosopher Jeremy Bentham. According to Bentham, people can make decisions in a situation of competing interests by measuring the total amount of “happiness” produced. "A measure of government," he wrote, "may be said to be conformable to or dictated by the principle of utility, when … the tendency which it has to augment the happiness of the community is greater than any which it has to diminish it."11
The so-called "Copyright Clause" of the U.S. Constitution might be taken as an example of utilitarianism: it does not appeal to a higher power, as in natural law thinking, but rather empowers Congress to enact intellectual property laws as a tool for general benefit – that is, "to promote the progress of science and the useful arts." While Canada’s copyright principles are not articulated at the constitutional level, our courts and legislators have often and increasingly used a rhetoric of public or national interest that could be said to be utilitarian.12
As a legal philosophy, utilitarianism is associated with legal positivism – the approach that locates the law not in established practice and custom, but in the statute alone. Sometimes positivism can be democratic in spirit, privileging the visible "black letter" law over invisible entrenched interests. However, the classical formulation of legal positivism, as stated by John Austin in his 1832 work The Province of Jurisprudence Determined, shows a harsher side of the doctrine: "The matter of jurisprudence is positive law; law strictly and simply so called: or law set by political superiors to political inferiors."13 Most legal education today is based on a modified positivist approach to learning black-letter law. We take a more "realist" approach, locating legal authority not only in the written laws, and not only in general practices and understandings of the good, but in their interaction.14
There seems … to be in authours a stronger right of property than that by occupancy; a metaphysical right, a right, as it were, of creation, which should from its nature be perpetual; but the consent of nations is against it, and indeed reason and the interests of learning are against it; for were it to be perpetual, no book, however useful, could be universally diffused amongst mankind, should the proprietor take it into his head to restrain its circulation…. For the general good of the world, therefore, whatever valuable work has once been created by an authour, and issued out by him, should be understood as no longer in his power, but as belonging to the publick.
Source: Johnson quoted in Boswell, Boswell’s Life of Johnson, 546.
In today’s debates, copyright is most often justified in economic terms: we are living in a "knowledge-based economy," the claim goes, and we need a particular vision of copyright to drive that economy. Classic economic analysis of copyright law rests on three general assumptions: that the free market system is the appropriate allocation device to guide the creation and dissemination of "information and knowledge-based products;" that information- and knowledge-based goods and services will be underproduced without a guarantee of sufficient market-based financial incentives to creators and owners; and that the expansion of exclusive intellectual property rights is necessary to protect these market-based incentives from being undermined by acts of appropriation.
Within the limitations of these assumptions, economic analysis seeks to promote the efficient allocation of resources in a market setting. In its sacralization of property rights, it is underpinned by natural law philosophies; but it is also essentially utilitarian in nature, in that it recognizes the existence of a trade-off between limiting access to works and providing economic incentives to create works. After all, an economy in which every single transaction with a copyrighted work were "monetized" or metered in some way would carry great financial and bureaucratic costs, which might slow down its growth (economists call these "transaction costs"). The trade-off is often referred to as the "balancing" of interests between the rights of owners and the rights of users.
Such cost-benefit analysis is open to criticism on a number of grounds. One central problem is that the losses that come from limiting access are not as susceptible to precise measurement as are the financial benefits accruing to the owners of exclusive copyright interests. Henry Richardson argues that cost-benefit analysis “makes no room for intelligent deliberation about how to best use our resources,” and that it thus “defeats its own aims."15 The balancing approach also does not seem to adequately consider how different stakeholders come to the table with different resources, different backgrounds, and different levels of political power. But while it may be argued that the discourse of "balancing of interests" fails to address several problems, it is certainly better than the one-dimensional approach of arguing that protections are good, and more protections are better, without regard to the losses on the other side.
The argument is often made that copyright protections need to be expanded because of changes in technology, or because new cultural practices threaten existing business models. But looking at copyright only from the standpoint of protections overlooks the reality that one person’s additional rights are just further restrictions for someone else. Rather than thinking about rights in a vacuum, we prefer to think also about the corresponding duties and disabilities that the rights impose on others. In other words, it makes just as much sense to speak of copyright restrictions as of copyright protections.
–James Boyle, “Second Enclosure Movement and the Construction of the Public Domain.”
The Problem of Intellectual Property
So far we have introduced two major paths of philosophical justification for copyright, and suggested how they underlie modern economic analysis. While we pointed out some of their pitfalls, we generally followed the tendencies of both approaches to gloss over the distinction between tangible property (land, chattels, goods, widgets) and intangible intellectual property (expression, knowledge, information). However, the differences between tangible and intellectual goods are fundamental, and any fully convincing justification of copyright (or, for that matter, patent, although we will not get into that here) must recognize these differences. The traditional rationales for copyright, then, can be challenged – and if copyright is to maintain its legitimacy this challenge must be acknowledged.
Copyright laws attempt to regulate the flow of intellectual and information goods – or at least the particular ways in which ideas, information, and knowledge are expressed. Talk about the importance of flows of information and knowledge is ubiquitous: Canadians are constantly being told that we live in an “information society.” But little attention has been paid in the policy context to understanding the nature and characteristics of information, ideas, and knowledge. Copyright policy typically proceeds from the assumption that intellectual goods are “things” without further analysis.
In fact, intellectual goods exhibit two major differences from private goods, or commodities: they are generally non-rival in consumption, and they do not inherently possess exclusion mechanisms. We would class intellectual goods, then, as public goods.
If a good is rivalrous in its consumption, it is depleted or used up when one person consumes it. Physical consumer goods that populate store shelves are rivalrous in consumption. When a widget is purchased it is no longer on the shelf for the next shopper. Depletable energy resources are another classic example of rivalry in consumption. When we say that public goods are non-rival in consumption, we mean that the consumption of the good by one person does not reduce the amount of the good available for consumption by others. If you walk down a street illuminated by a street light, the light is not depleted because you enjoyed its benefit. The bulb in the lamp will be depleted through use and is itself a private good with rivalry in consumption. But the service of street lighting is a public good and exhibits non-rivalry in consumption. The act of breathing does not significantly reduce the air available for everyone else, so it too is non-rivalrous in consumption. (Locke said the same about water, so we can see that goods can change, depending on circumstance, from non-rival to rival or vice versa.)
In the context of copyright analysis, we can distinguish a book or a CD (physical goods with rivalry in consumption) from the information contained in the book or CD. Until recently, information was necessarily distributed in physical containers, so the differences between rivalry and non-rivalry in consumption were not as noticeable as they are today. With advances in digital technology, content is now routinely severed from its container. A digital file is non-rival in consumption and can be distributed to ten thousand persons just as well as ten. One could even say that the essence of information as information is that it is non-rival in consumption.
character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives it without darkening me.
–Thomas Jefferson to Isaac McPherson, Monticello, Aug. 13, 1813,
in Jefferson, Writings of Thomas Jefferson, 13, 333–34.
There are certainly exceptions to this general observation. For example, hot market information and other types of proprietary data might become less valuable with wider distribution.16 But we could also note that much information or expression becomes more valuable as more people use it, by the phenomenon known by economists as “network effects.” The telephone system provides an apt analogy: it would not be very valuable to you if you were the only person with a telephone, but the more people using the system, the more value it has. A similar thing happens in the cultural marketplace with bestsellers, fads, and trends.
The second aspect of a public good that distinguishes it from a private good is that it does not have an exclusion mechanism. A tollgate is an example of an exclusion mechanism. So is a cash register: when you go to the store, you don’t get to enjoy a new shirt or bicycle unless you pay for it. Public goods are different. Anyone can use them, regardless of whether they express a preference for them in the marketplace. People who walk down a street at night get the benefit of the streetlight whether or not they helped pay for it. No shield emerges to block the light from those who have not paid taxes in that jurisdiction (or at least not yet: maybe somebody will think of a way to do it). National defence, policing, roads, and schooling are other common examples of goods that lack an exclusion mechanism. You enjoy the “benefits” of national defence expenditures whatever your opinion on how tax revenues should be spent.
Whether or not a good has an effective exclusion mechanism can be a question of public policy, a question of technology, or both. The law of theft is an exclusion mechanism that has long been imposed as a matter of public policy. It is against the law to take an item out of a store without paying for it, and it is against the law to sneak into a theatre without buying a ticket. The exclusion mechanism may also be a technological device. The automated tollgate is an older such technology, and consumers are now becoming familiar with a vast array of new digital locks or gateways, known as technological protection measures (TPMs). But exclusion mechanisms are often hybrid: that is, the law often acts to reinforce a technological exclusion mechanism. Think of cable television. It used to be that television airwaves were pure public goods. By turning on your television and viewing a broadcast, you were not depleting the airwaves available for others to enjoy. Cable companies introduced an exclusion mechanism: you had to pay to get the system hooked up. If you “fix” the cable box so that you can view programs without subscribing to the service (or create a device to do so), you are likely to be in violation of a law, and subject to sanctions. The same double exclusion mechanism could be layered onto TPMs, even though there are many legitimate reasons to defeat a TPM: making a backup copy of a computer program, for example, or accessing public domain content (see chapter 9).
Table 1. Comparison of Pure Public Goods and Pure Private Goods
|pure public good||non–rival (joint) consumption use does not result in depletion of the good||exclusion mechanism is not present|
|pure private good||rival consumption; use results in depletion of the good||exclusion mechanism is present|
We have seen how intellectual goods are inherently non-rival in consumption as they are not naturally subject to an exclusion mechanism. The container holding the information (the book, the CD) is rivalrous in consumption and is subject to an exclusion mechanism and rivalry in consumption, but the information contained therein is not. Public goods present a problem for market-oriented economists because if an item has public good characteristics, people will be able to use and enjoy it without having to pay for it. Lack of exclusion means you can obtain the benefit of the good whether or not you are willing to pay for it. The price system, which is based on rules of supply and demand, cannot operate for public goods, and we have in this an instance of what economists call total market failure.
While many people see the public goods quality of digital information and expression as an exciting phenomenon, mainstream economists and large-content owners see public goods as a problem that needs to be cured. They desperately need the price system to work. A fix is needed, and the cure is to create some sort of exclusion mechanism. In the case of intellectual goods, the laws of intellectual property can be layered on top of technology to create artificial scarcity and impose constraints on free flows of information.
These artificially created exclusion mechanisms are powerful policy tools. They may well be justifiable on natural law or utilitarian grounds: we may say, for example, that it isn’t fair that an author not be paid for her work, or that it is in the public interest that she be paid. Or we may think that only the individuals who need a certain good ought to pay for it. But the exclusion mechanisms should be used carefully, because they have the potential to unduly restrict the transfer of information and knowledge. We can think of this dilemma in terms of “balancing” different interests. But the public goods analysis also raises a wider question that cannot be properly analyzed within the constraints of conventional cost-benefit analysis. Should we be cautious, as a society, about subjecting information goods to the analytical and policy approaches typically applied to tangible goods? Legislators and courts have most often treated them differently: perhaps we should heed this history.
"Copyright's Rationales" is an excerpt from Canadian Copyright: A Citizen’s Guide by Laura Murray and Sam Trosow. Toronto: Between the Lines Press, 2007. Reprinted with permission.
- Milton, “Areopagitica” (1644); the full text is available at http://www.uoregon.edu/~rbear/areopagitica.html. The anonymous author is quoted in Mark Rose, Authors and Owners: The Invention of Copyright, (Cambridge, Mass: Harvard University Press, 1993), 55. Rose notes the possibility that the author of this pamphlet was in fact a bookseller – and therefore using the “authors’ rights” rhetoric to bolster the booksellers’ interests.
- William Fisher divides copyright justifications into four categories: utilitarianism, labour theory, personality theory, and social planning theory. We have combined labour theory and personality theory together as “natural law” theories; what Fisher calls “social planning theory” is reflected in part in the third section of this chapter on information as “public good.” Fisher, “Theories of Intellectual Property,” New Essays in the Legal and Political Theory of Property, ed. Stephen R. Munzer. (Cambridge and New York: Cambridge University Press, 2001), http://www.law.harvard.edu/faculty/tfisher/iptheory.html, 168–99.
- John Locke, Second Treatise of Government, ch. 5; Project Gutenberg website, http://www.gutenberg.org.
- Locke, ch. 5, sect. 27.
- Ibid., sect. 31.
- See Justin Hughes, “Locke’s 1694 Memorandum (and More Incomplete Copyright Historiographies),” Cardozo Legal Studies Research Paper no. 167 (October 2006); Social Sciences Research Network website, www.ssrn.com.
- Reports of Sir Edward Coke 107, 77, English Reports 638(Common Pleas, 1610); http://plaza.ufl.edu/edale/Dr%20Bonham’s%20Case.htm.
- 1 English Reports 837 (House of Lords), 17 Cobbett’s Parliamentary History 1078 (1813). For a further analysis of the case see Rose, “Author as Proprietor: Donaldson v. Becket and the Genealogy of Modern Authorship.” Representations 23 (summer 1988).
- A similar result was reached in the United States in the 1834 case of Wheaton v. Peters (33 US 591), where the Supreme Court rejected the argument of common law copyright in favour of a strict reading of the statute. For discussion of this important case, see Lyman Ray Patterson, Copyright in Historical Perspective, ch. 10, (Nashville, Tenn: Vanderbilt University Press, 1968); and Meredith McGill, “The Matter of the Text: Commerce, Print Culture, and the Authority of the State in American Copyright Law,” American Literary History, 9, 1 (1977).
- Civil law systems date back to Roman law, and are based on codes that set out the specific provisions of law. These codes are then applied and interpreted by judges when disputes arise. In contrast to code-based legal systems, the English common law is based on custom and practice as reflected in judicial precedent. For an accessible explanation of Canada’s history of combining both “civil law” and “common law” systems, see http://www.canadiana.org/citm/specifique/lois_e.html.
- Jeremy Bentham, Introduction to the Principles of Morals and Legislation, ch. 1, article VII. Jeremy’s Labyrinth website, www.la.utexas.edu/labyrinth.
- Section 91 of the Canadian Constitution merely lists copyright as an enumerated power of the federal government, with no rationale or guidance provided. See also Laura Murray, “Protecting Ourselves to Death,” First Monday 9, 10 (2004), www.firstmonday.org; and also Théberge v. Galerie d’Art du Petit Champlain Inc. , S.C.R. 336, para. 32, http://www.canlii.org/ca/cas/scc/20002/2002scc34.html.
- Austin, Province of Jurisprudence Determined. Introduction by H.L.A. Hart, (New York, Humanities Press, 1965 ), 9.
- The most famous proponent of the realist philosophy was Oliver Wendell Holmes: see Holmes, “Path of the Law,” Harvard Law Review, 10, 457 (1897). For an accessible discussion of related issues, see Roderick Alexander Macdonald, Lessons of Everyday Law, Law Commission of Canada and School of Policy Studies, Queen’s University (Kingston and Montreal: McGill-Queen’s University Press, 2002).
- Henry S. Richardson, “Stupidity of the Cost-Benefit Standard,” in “Cost Benefit Analysis: Legal, Economic, and Philosophical Perspectives, ed. Matthew D. Adler and Eric A. Posner, (Chicago: University of Chicago Press, 2001), 136.
- Examples are advance knowledge of weather conditions that will send the price of a crop’s futures soaring, or inside financial data indicating that a company will have to restate its books to show a large loss. There are whole bodies of law protecting trade secrets and confidential information, and prohibiting certain uses of insider corporate information.