Controversy: Would the Absence of Copyright Laws Significantly Affect the Quality and Quantity of Literary Output? A Response to Paul A. Cleveland
Cole, Julio H., Journal of Markets & Morality
I did not really expect to get away from an exchange of this sort (and certainly not from a controversy sponsored by this Journal!) without having to address the normative aspects of intellectual property issues, but I preferred to wait for my distinguished opponent to fire the first shot. He has now done so, and I must follow suit.
Do We Have a Natural Right Not to Be Copied? (1)
I was glad to learn that Professor Cleveland, while he does not share my views on copyrights, agrees with me regarding the negative consequences of patents. This is not a common viewpoint--opinions on intellectual property tend to be "all or nothing"--although it is a respectable position, and has a distinguished intellectual ancestry. (2) It is even a position for which I have some sympathy--partly because I happen to think that copyrights are not as economically harmful as patents--though it is a sympathy based more on personal "feeling" than on intellectual conviction. As far as the strictly intellectual case for copyright is concerned, I believe it is as weak as that for patents.
Our most basic disagreement seems to hinge on the question of whether copyrights are either (a) a form of property, or (b) a special privilege. Some people (myself included and many defenders of copyrights) think that copyright laws are simply a special sort of governmental intervention, designed to produce a desired social outcome. If so, then the discussion should center on whether they are effective means of achieving that objective, and whether they are the only means of achieving it. This is the utilitarian position, which Professor Cleveland attacks so fiercely, but which many people regard as quite reasonable.
However, other defenders of copyrights view them as much more than mere instruments of social policy. Rather, they view them as a means for protecting pre-existing "natural rights," essentially as a way to prevent theft. This is Professor Cleveland's position, which he states in so many words: "A copyright is meant to protect the owner of a product of scarce resources from theft." This view also seems reasonable at first glance, but it has its own problems. Consider, for example, what is implied when we say that unauthorized copying should not be allowed because it amounts to a form of stealing. If we argue that it is stealing, then should we not be able to describe what exactly has been stolen? If I reproduce someone else's book (or painting, or musical score, or computer program) the original "owner" of the product has not thereby been dispossessed. He still has it, and the fact that others are using it too does not mean that he can no longer use it as well.3 In what sense, then, can we say that "copying is theft" and that the original creator has been "robbed"?
Copying by others will certainly affect a person's ability to sell his own product, and in that sense we might say that unauthorized copying hurts him. But the important question is, Has the creator lost anything
to which he was entitled? If copying by others results in his obtaining smaller revenues than he would have otherwise, then he has been dispossessed of a profit, which is true enough, but was he really entitled to it? Ultimately, the question is whether we believe the original creator should always be entitled to all of the benefits deriving from his creation. Many people feel that unauthorized copying somehow "offends the moral sense," in that some people (the copiers) benefit from the work of others (the creators) without compensation. (4) But this brings us back to the basic question: Who has the right? Does the fact that others benefit from my work give me the right to prevent them from doing so?
Some people think that the act of creation itself is what justifies ownership. To them, this probably seems to be a sufficient argument, but to me, it either begs the question, or it proves too much. If it really were the case that intellectual creation in and of itself automatically grants to the creator the right to prevent others from using his work without permission, then it seems to me that to be consistent we would have to apply this to any kind of intellectual creation. …