Copyright and Public Goods

An Argument for Thin Copyright Protection

1The U.S. Constitution charges Congress with promoting ‘the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.’ This is achieved through copyrights. The most common argument in favour of the distribution of exclusive copyrights is that they provide an incentive for artists and scientists to create their works. But, as I will show, the characteristics of intellectual objects (objects that can be copyrighted) can support the contradictory arguments that one, exclusive copyrights are necessary and two, that they should not exist at all. I conclude that the appropriate amount of copyright protection protects the incentive for producers to create while also defending the public’s right to a rich intellectual realm. This is sometimes termed ‘thin’ copyright protection. Thin copyright protection is far weaker than the current copyright regime. For instance, the Sonny Bono Copyright Extension Act of 1998 extended copyright protection to the life of the author plus 70 years, and in the case of works created by corporate entities the act extended protection to 95 years. This is a far cry from copyright’s original duration of 14 years (plus one possible renewal). It would be difficult to argue that these extensions provide any extra incentive for authors to create, while on the other hand they surely attack the public’s right to a robust intellectual realm. Therefore, the current copyright regime needs to be substantially weakened to a ‘thin’ level.

2To avoid confusion, I will call works that have the potential to be copyrighted ‘intellectual objects’ before they are copyrighted and use the term ‘copyrighted works’ for intellectual objects after they are copyrighted. Intellectual objects, however, are not objects in the ordinary sense of the word. The particular edition of a book (and the particular copy of a particular edition of a book) is not an intellectual object. It is merely a manifestation (or instance) of the intellectual object. The work, in the broadest sense, is the actual intellectual object. In other words, the manifestation of the work is not the intellectual object, but the work itself is. An individual book is an instantiation of the work, which is the actual intellectual object. Without delving too far into the ontology of artworks it is necessary for this discussion only to see that when talking about intellectual objects we are not talking about physical objects but about objects that can be instantiated in many locations. That is, intellectual objects can be reproduced without losing their intellectual value.

3Copyright discussions often begin with the incentive argument mentioned above. An incentive is needed to foster innovation because intellectual objects are non-rivalrous (with regards to consumption) and non-excludable before they are copyrighted. A non-rivalrous good is a good for which enjoyment of it by some agents does not diminish available opportunities for others to enjoy it as well. A non-excludable good, on the other hand, is a good for which it is not possible to prevent individuals (who do not own the good) from consuming it or partaking of the benefits of it (at a relatively low cost). Since intellectual objects are non-rivalrous and non-excludable there is good reason to believe that without copyright protection authors would reduce their production of intellectual objects. This is because without this protection there would be (arguably) no way for authors to receive compensation for their work and to recoup the costs that went into producing the intellectual object at hand.

4The fact that intellectual objects are non-rivalrous means that there is no reason why you and I cannot read the same book at the same time. My reading the same work that you are reading (as opposed to reading the same manifestation of the intellectual object) does not decrease your enjoyment in reading that book. That is, the fact that we are both reading Moby Dick in the same period of time does not diminish either of our utilities. This should be contrasted with rivalrous private goods. Take, for instance, a bag of potato chips that you have just bought from your local grocery store. If I eat all of your chips you can no longer derive pleasure from them and if you eat the chips I cannot derive pleasure from them. Rivalrous goods are marked by this relationship. One person’s full enjoyment of such a good disallows another person’s full enjoyment of a rivalrous good. Edwin Hettinger aptly explains the concept of non-rivalrousness in his essay ‘Justifying Intellectual Property’ by writing that intellectual objects are goods which ‘are not consumed by their use’ (34).

5Purely non-excludable goods are goods for which there is no way for one person to exclude another from their use or consumption. An example of a purely non-excludable good is the air. It is absolutely impossible for one to exclude another person from breathing the air (except perhaps by killing them). Yet, intellectual objects are not purely non-excludable but relatively non-excludable. This ‘relative’ non-excludability arises from the fact that a person can exclude another from the physical instantiation of an intellectual object s/he owns (where s/he owns the physical instantiation and not the intellectual object). That is, s/he can prevent another person from taking his/her copy of The Corrections. But s/he cannot exclude another from the intellectual object instantiated in the book. This is because a person’s copy of The Corrections is, in many ways, a piece of physical property and not of intellectual property. What I am concerned with here is intellectual property and thus with intellectual objects (what are later the copyrighted works). Copyrighted works are legally excludable, but it is still difficult to restrict their distribution. This means that they are quasi-non-excludable.

6That intellectual objects are non-rivalrous and non-excludable leads to two contradictory conclusions. The first argues that there is a very good justification for having strong copyright laws; namely that without strong copyright laws works that originally had great value will be copied by unauthorised entities who will sell the copied works for very little and will give none of it back to the author of the work. This means that the author will eventually have no financial incentive to create his/her works. However, these attributes of intellectual objects also mean that there is a very good for having weak (or thin) copyrights (or no copyrights at all). Since there is no reason why each person should not be able to possess all of the great works for a very cheap price (which having weak or short copyrights would ensure). This is especially true given the fact that the entire reasoning for having copyrights at all (in this line of argument) is to ensure the progress of science and the arts which presumably are meant to belong to every citizen of the United States. The first branch of this tension could be called the producer’s conclusion and the second could be called the consumer’s conclusion. If we believe the first conclusion we will have to side with producers over consumers, whereas if we believe the second we will have to side with consumers over producers.

7These contradictory results both follow from the fact that intellectual works are non-rivalrous and non-excludable. Since they are non-rivalrous and non-excludable there is every reason to leave them that way (that is, not to have copyrights) as it benefits the public but for the same reason there is every reason to have strong copyrights so that authors will create intellectual works in the future. Hettinger notes that the justification for copyright at this level is paradoxical. ‘It establishes a right to restrict the current availability and use of intellectual products for the purpose of increasing the production and thus future availability and use of new intellectual products’ (48). That is, the logic is that you’ll get more intellectual objects if you limit the current availability of intellectual objects.

8Law Professor and copyright specialist Paul Goldstein summarises this argument in his book Copyright’s Highway when he writes, ‘since copyright allows creators and publishers of literary and artistic works to charge a price for gaining access to these works, the inescapable effect is to withhold the work from people who will not or cannot pay that price, even though giving them free access would harm no one else’ (176). But this is only one side of the tension, to elucidate the other side which Goldstein subscribes to, he writes that ‘if society withholds property rights from creative work, the price that its producers can charge for access to it will begin to approach zero; their revenues will diminish and, with them, their incentives to produce more’ (177). So we are left with this tension that must be duly dealt with by policy makers.

9In light of the tension we should measure copyright protection by both of its poles. These poles correspond in the first case to the author’s rights and in the second to the consumer’s rights. The best copyright protection will accept what both sets of rights demand to the extent that it can, but when it cannot it will side with the user since the set of users more or less corresponds to the public at large. (We are all users of intellectual objects but are not all authors of them.) What this means for enacting copyright policies is that copyright protection should exist, but it should exist no more than is necessary for promoting the arts and sciences. That is, copyrights should be seen as incentives to create, not property rights. The fact that there are incentives will please authors and the fact that they are limited (through broad fair use exemptions, a healthy distinction between ideas and expressions, and having copyright protections for a relatively short period of time) will please users. All in all this is the best way of seeing our way through the tension at the heart of copyright law.

10In terms of the enactment of the law, copyright laws should be limited in duration and scope. First, copyright protection should not last for 70 years plus the life of the author, which is too long to justify in terms of providing an incentive for authors to create. Second, fair use provisions for copying parts of works should be broadened and minor infractions (such as private copying, regardless of the difficulties in defining what ‘private’ means) should not be prosecuted since small amounts of copying do not encroach on the effectiveness of the incentive for authors to create. Third, the idea/expression distinction should be strongly and vigorously maintained. While all of these changes appear on the surface to be siding with the public over authors, the fact that copyright protection exists at all is obviously to the author’s advantage. Thus, these changes constitute a copyright regime that is more beneficial to all, authors and public included.