Thursday, November 09, 2006

Of the case for fair use: digital distribution of course materials -- Assumptions Underlying Copyright Policy

The Assumptions that Underlie Copyright Policy

The Supreme Court generally defers to Congress in copyright matters, letting Congress determine what set of rights will promote progress in accordance with the Copyright Clause in the Constitution.[1] But none of us, including the members of Congress, has sufficient empirical evidence to determine what level of protection will achieve those Constitutional goals, and this lack of evidence means that decisions about the level of protection are made on the basis of something other than such facts. Thus, what we assume and what we believe in the absence of hard facts seems to determine what levels of protection we will implement.[2]

Those who favor public access and use, including but not limited to a generous scope for fair use, believe that the rights Congress grants to authors are a statutory monopoly, and must be limited to comply with the Copyright Clause: Congress is empowered to grant only so extensive a monopoly as is needed to overcome the potential underproduction problem created by the special nature of creative works. This problem, roughly stated, is that a creator’s ability to recover his or her investment in creating, producing and distributing a work may be threatened by the ease with which works can be copied and distributed. In some cases, potential creators will not make an investment at all. Granting the copyright owner a limited monopoly alleviates this problem, providing a period of time over which the copyright owner is free from normal competition. From this perspective, copyright is a temporary and limited burden on the public’s otherwise free use of creative works in order to assure that there will be an adequate supply of such works to enjoy.

Those who, on the other hand, favor strong author, producer and distributor rights assume that the grant of rights need not be limited, indeed should not be limited except in very narrowly constrained ways. They believe that we should seize every opportunity to increase the revenues to authors, producers and distributors because every additional penny may potentially increase the pool of creative works.[3] This is sometimes referred to as the “property theory” because its proponents resist any limits on copyright owners’ rights and argue that intellectual property is “the same as” other kinds of property, such as real estate, that do not have the many statutory limits imposed by copyright law.

But, as indicated above, because of inadequate empirical evidence, neither side can prove that its theory will produce a better result. Nevertheless, the view that copyright owners should have relatively unlimited protection has enjoyed phenomenal success, of late. Proponents of this view can point to some rather straightforward economic theories to support the case for circumscribing fair use.

[1] U.S. Constitution, Article I, Section 8, Clause 8; Eldred v. Ashcroft, 537 U.S. 186 (2003).

[2] McGowan, D. (2004). Copyright Nonconsequentialism.

[3] Whether it actually does increase the pool of creative works, it certainly has the effect of increasing copyright owners’ wealth.

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