Earlier this year, a number of online commentators were embroiled in a kerfuffle, ostensibly about copyright's purpose and the various justifications for having copyright at all. One commentator mentioned that copyright existed to reward creators for the work they put into their creations; another commentator shot back that essentially copyright exists to ensure a supply of creative works is available for consumers to enjoy. As online debates go, this one was over in a second, after which everyone went back into their digital cubbyholes to think about what to shout about next.
In looking back at the debate, I was struck at how quickly it exploded and subsided with few (if anyone) distinguishing between copyright's purpose (why copyright exists) and the reasons that people give to justify copyright protection. Further, none of the commentators seemed to give a clear statement of copyright's purpose or its justifications. Both issues are critically important to today's dialogue about copyright. So in continuing this column's theme of copyright law basics, here is more about copyright's purpose and a summary of what is universally accepted as its primary justification.
Why Does Copyright Exist?
Virtually any analysis of U.S. copyright's purpose must begin with the provision of the U.S. Constitution that sanctions copyright. Article 1, section 8, clause 8 states the following pertinent part:
The Congress shall have Power ...
To promote 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 constitutional provision provides the reason why copyright exists: "to promote the Progress of Science and useful Arts...." In contemporary language, copyright exists to benefit the public by promoting learning. Nothing more, nothing less. According to the U.S. Supreme Court in Harper & Row v. Nation Enterprises (1985):
[C]opyright is intended to increase
and not to impede the harvest of
knowledge.... The rights conferred
by copyright are designed to assure
contributors to the store of knowledge
a fair return for their labors.
[The Constitution's grant of copyright
power to Congress] "is a means
by which an important public purpose
may be achieved. It is intended
to motivate the creative activity of
authors and inventors by the provision
of a special reward...."
"The monopoly created by copyright
thus rewards the individual
author in order to benefit the public."
This purpose also was cited by the Constitution's framers. As James Madison wrote in the "Federalist No. 43," "The utility of [the power conferred by the patent and copyright clause] will scarcely be questioned.... The public good fully coincides in both cases with the claims of individuals."
The emphasis on learning and public benefit that is the root of American copyright law comes from the Statute of Anne, the 1709 British law upon which the Copyright Act of 1790 (the U.S.'s first copyright statute) is based. The Statute of Anne's title is "An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors . during the Times therein mentioned." Its preamble declares that the purpose of the Statute of Anne is to be "for the Encouragement of Learned Men to compose and write useful Books."
U.S. Copyright's Proposed Justifications
Though many consider copyright to be a legal regime that is better associated with practical than philosophical concerns, the field actually has an extensive theoretical background. These theories attempt to justify why copyright exists or is necessary.
In my analyses of this issue, there are three core proposed justifications I see for having copyright protection; two of these theories (economic incentive and natural rights) are the ones that are most commonly cited. …