Copyhype

On March 9, a group of 31 advocacy groups and 13 academics sent a letter to members of the 114^th Congress, “Supporting a Pro-Innovation, Pro-Creator, Pro-Consumer Copyright Agenda” (which was a response to a previous letter from over 60 groups and academics calling for continued support of copyright protections). The letter called on Congress to “seek the appropriate balance in copyright law to unlock the innovative and creative spirit of all people to their fullest potential,” which sounds good in general. However, the specific points of the letter reveal that the signers embrace an impoverished view of copyright that would result, ultimately, in an imbalance.

One of the points made by the letter is as follows:

The U.S. Constitution grants Congress the right to create copyright laws “to promote the Progress of Science and useful Arts.” Congress’ power to enact copyright regulation is a limited power under the U.S. Constitution. In the words of the Supreme Court, “The primary objective of copyright is not to reward the labor of authors, but to promote the Progress of Science and useful Arts.” We strive to uphold the honored, privileged legal place granted to those who discover and create.

This particular strain of thought, establishing a dichotomy between an author’s reward and the promotion of progress, with the latter trumping the former, can be traced back to the Court’s earlier decision in Fox Film v. Doyal¹286 US 123 (1932). (and is based on a misreading of that opinion). In US v. Paramount Pictures, the Court cited to Fox Film when it said, “The copyright law, like the patent statutes, makes reward to the owner a secondary consideration.”²334 US 131, 158 (1948).

The letter fails to mention that the Supreme Court has expressly rejected this characterization of copyright.

Justice Stevens quotes Paramount in his dissent in Eldred v. Ashcroft, drawing a sharp rebuke from the majority, which said

JUSTICE STEVENS’ characterization of reward to the author as “a secondary consideration” of copyright law, understates the relationship between such rewards and the “Progress of Science.” As we have explained, “[t]he economic philosophy behind the [Copyright] [C]lause … 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.” Accordingly, “copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge…. The profit motive is the engine that ensures the progress of science.” Rewarding authors for their creative labor and “promot[ing] … Progress” are thus complementary; as James Madison observed, in copyright “[t]he public good fully coincides . . . with the claims of individuals.”³537 US 186, 212 n.18 (2003).

The distinction between the two views is subtle but important. The view of balance expressed in the letter sees the rights of creators and copyright owners on one side of a scale and the rights of users and the public on the other.⁴See, e.g., Public Knowledge, Principles for a Balanced Copyright: “The powers granted to authors must be balanced with the rights of users and other innovators, whether innovation takes the form of new creative works, or new ways to access existing works. Encouraging technological innovation and preserving consumers’ rights thus go hand in hand”; EFF, Fair Use and Intellectual Property: Defending the Balance: “Ideally, intellectual property law—generally, copyright, patent, and trademark—is supposed to embody a balanced incentive system. Copyrights and patents, for example, are supposed to encourage authors and inventors to create new things by helping them receive some compensation for that investment. At the same time, copyright and patent law put limits on authors’ and inventors’ rights, such as fair use (for copyright) and limited terms of protection, to help make sure that IP rights don’t unfairly inhibit new creativity.” In one sense, the view reveals an anxiety over property rights. It embraces a view of property that sees individual rights as separate from the public interest, with individual rights protected as property only to the extent they do not interfere with the public interest. In other words, individual rights are only begrudgingly tolerated.

But the second view—the one embraced by the Supreme Court in Eldred—recognizes that prioritization of property rights not only does not come at the expense of the public interest but is in fact essential to promotion of the public interest.

The Public Interest of Property Rights in History

This concept has been recognized historically. In Wealth of Nations, Adam Smith wrote, “It is not from the benevolence of the butcher, the brewer, or the baker, that we can expect our dinner, but from their regard to their own interest.”⁵Book I, chap. 2, para. 2. In one of his most cited passages, Smith observes that the public interest emerges from self-interest. “By directing that industry in such a manner as its produce may be of greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention.”⁶Book IV, chap. 2, para. 9. The promotion of the public interest is thus inherent to the pursuit of self-interest and not something solely external to it.

James Madison explicitly recalled Smith when discussing copyright. “The public good fully coincides,” he said of the Copyright Clause in the Federalist Papers, “with the claims of individuals.”⁷Madison was instrumental both in the Continental Congress’s recommendation to the states to pass copyright legislation after being “persuaded that nothing is more properly a man’s own than the fruit of his study” and to the inclusion of the power to secure copyrights in the federal Constitution. See, generally, The Copyright Clause: American Independence in Literature. This is remarkable in that not only was the coincidence of public interest and individual property rights recognized since the founding of the US but that that recognition extended to intellectual property.

Turning back to Eldred, the majority reiterates this point, this time responding to a dissent by Justice Breyer:

JUSTICE BREYER’s assertion that “copyright statutes must serve public, not private, ends,” similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.⁸537 US 186, 212 n.18 (2003).

Conceptual and Normative Role of Property and the Public Interest

More recently, scholarship has described how property rights serve public values both conceptually and normatively. In Property’s Ends: The Publicness of Private Law Values, Cornell Law professor Gregory Alexander covers both grounds. Conceptually, Alexander argues what Smith, Madison, and the Supreme Court has observed: that the private and public values of property “cohere rather than conflict.” Normatively, Alexander proceeds from the claim that the normative foundation of private property is human flourishing, which, “understood as morally pluralistic, includes both private and public values.” Thus, “the relationship between private property and public values should be seen as symbiotic rather than antagonistic.” Alexander concludes that “any account of public and private values that depicts them as categorically separate is grossly misleading. One important consequence of this insight is that many legal disputes that appear to pose a conflict between the private and public spheres or that seemingly require the involvement of public law can and should, in fact, be resolved on the basis of private law—the law of property—alone.”

In The Right to Include, Notre Dame Law professor Daniel Kelly provides an additional, seemingly counter-intuitive, insight to this narrative. Though the right to exclude is central to property, it does not, as many contend, lead to individualism and exclusion at the expense of public values. In fact, property promotes inclusion through a variety of mechanisms, including contracts and co-ownership. Without the protection of property and availability of inclusion mechanisms, owners of resources face opportunism by others, leading to less than optimal inclusion. To put it another way, resource owners won’t fully use their property in socially valuable ways without secure property rights and legal mechanisms for inclusion because they face the risk of being taken advantage of by others. Kelly argues that “By providing owners with a range of options by which to include others, these forms help to ensure that an owner’s private incentive to include converges with the socially optimal level of inclusion.” Says Kelly,

Some owners may misuse their property by imposing social costs on others, isolating themselves from others, or discriminating against others. But many owners decide to use their property not only as a “wall” to exclude others but also as a “gate” to include their neighbors, friends and family, colleagues and customers, and even strangers who need help. If so, property is capable of promoting human sociability, not merely atomistic individualism.

Privacy and Copyright

In addition to property, it is worth pointing out similar ideas in the context of privacy, since privacy shares historical and philosophical foundations with copyright.⁹See, for example, Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890) (“the legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are, it is believed, but instances and applications of a general right to privacy”). Both provide an individual with some control over an intangible thing that originates from their self. Intuitively (and ostensibly) privacy would seem to protect a private right, shielding the individual from societal intrusions. However, noted privacy scholar Daniel Solove has argued that privacy is not necessarily “an individualistic right,” and points to others who have contended that “privacy harms affect the nature of society and impede individual activities that contribute to the greater social good.”¹⁰A Taxonomy of Privacy, 154 U Penn L. Rev. 477, 487-88 (2006). Elsewhere, Solove writes:

Society involves a great deal of friction, and we are constantly clashing with each other. Part of what makes a society a good place in which to live is the extent to which it allows people freedom from the intrusiveness of others. A society without privacy protection would be suffocating, and it might not be a place in which most would want to live. When protecting individual rights, we as a society decide to hold back in order to receive the benefits of creating the kinds of free zones for individuals to flourish.¹¹Daniel J. Solove, “I’ve Got Nothing to Hide” and Other Misunderstandings of Privacy, 44 San Diego L. Rev. 745, 762 (2007).

Promoting the Progress

The rights of creators and the public interest are not separate concepts that require balancing. Rather, they coincide through copyright. By securing the economic and moral rights of expressive works, authors will maximize the value of their creative labors, and companies will maximize their investments, creating and disseminating works which promote the progress of art, science, and knowledge. That’s not to say there is no need for limitations and exceptions to copyright in certain situations—there certainly is (as with any property right). But it is important to start from the correct baseline by recognizing the inherent public values of property and copyright.