Copyright is intended to benefit society as a whole. It’s easy to lose sight of this broader perspective in the course of day-to-day dealings with copyright, but it’s important to keep in mind, especially as we consider the ways in which the current copyright system might be improved.
Copyright theories, with roots in law, philosophy, and economics, contemplate the benefits that copyright ought to bestow, and how such benefits may be best derived. In essence, when and why should copyrights be created? What should the scope or limit of those rights be? Descriptions of four prominent theories and their tenets are briefly sketched below. Which one resonates with you?
The fairness theory of copyright is based on the premise that the law ought to give authors what they deserve; in other words, hard work should be rewarded and authors should retain control of the fruits of their labors. For example, exclusive rights afford creators a limited monopoly and the opportunity to profit from their work. Further application of this theory might involve fair compensation for contributors to composite works and increased protections for factual works (facts are not presently protected by copyright). This theory is particularly influential in common law countries such as the United States and United Kingdom.
Personality theory is less concerned with compensating labor, and focuses instead on protecting the emotional bond between the artist and her creation. Moral rights derive primarily from personality theory and encompass an author’s rights to be credited for her work, to protect the integrity of her work, to determine when to publish a work, to demand that a work be returned, to be protected from excessive criticism and to collect a fee when a work is resold. Such rights may sound alien to an audience in the United States, where moral rights are rarely enforced outside of the limited circumstances prescribed by the Visual Artists Rights Act (VARA) of 1990. Personality theory and its attendant moral rights are more prevalent in civil law countries, such as the European Union member states.
The welfare theory of copyright promotes the interests of society as a whole and favors the greatest good for the greatest number of people. This system balances incentives to create with mechanisms to make works widely available for the benefit of all (e.g. exclusive rights and eventual expiration of those rights). Welfare theory’s emphasis on the collective good contrasts with the individual-centric rewards of the fairness and personality theories, and also differs markedly in its attitude towards intellectual property as a necessary evil that is required to facilitate greater production of public goods. Copyright reform motivated by the welfare theory might remove copyright protection for those works which would be produced in “optimal” quantities anyways. For example, advertisements are created to market other products rather than for any independent value. Advertisements would therefore continue be produced with or without copyright protection. This theory aligns most closely with the United States’ constitutional basis for copyright, which intends for copyright to “promote the Progress of Science and useful Arts” (US Const. art. I, sec. 8, cl. 8).
Culture theory contends that the law should cultivate a just and attractive culture. This theory tends towards paternalism, as it presumes to encourage works for the betterment of humankind rather than limiting the scope to those works for which there is a current demand. Like welfare theory, cultural theory is prospective: the law should prompt individuals to behave in ways that will create a better society in the future. Cultural areas where copyright policies may be the most influential include diversity, art, education, and democracy. Thus, copyright reformers motivated by the culture theory might seek to identify and ameliorate barriers imposed by copyright law on educational uses of copyrighted material.
Collectively, these theories illustrate how copyright serves as the means to multiple ends, however imperfectly. Individuals receive economic and moral rights to stimulate the creation of new works from which the rest of society may also benefit. The various theories ultimately come down to fine tuning the system, as seen with the examples accompanying each theory above.
What copyright theory or motivation for copyright do you find the most compelling? We’d love to hear your thoughts in the comments section.
By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries