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How Much Right in a Copyright?

February 2nd, 2010 · 8 Comments

Sonny Bunch over at America’s Future Foundation gets all wound up over the idea that copyright is centrally about creating an instrumental incentive for production:

Yes, copyright was created in part because there were concerns that authors wouldn’t bother creating new work if they were consistently stolen from, leading to Yglesias’s oddly solipsistic reading of intellectual property law. But, more importantly, copyright law evolved because we think that artists, writers, musicians, and others have a right to profit from their labors. It’s a crazy idea, I know.

Call this the Lockean theory of copyright—a theory conspicuously absent from the Constitution’s Copyright Clause, which ties “exclusive rights” to the promotion of artistic and scientific progress. The thing is, this reading seems to make patent law a gross violation of the same right. Doesn’t it “rob” those who independently replicate a patented invention the right to profit from their labor?

Also, one wonders: How much do they have a right to profit? Assuming Sonny’s not going Marxist on us, I expect he doesn’t mean “commensurate with the amount of labor invested.”  He means, one supposes, whatever the market will bear. But what the market will bear depends pretty heavily on the precise contours of the copyright. How broad are fair use exemptions? How long is the term? (And if IP is really just like physical property, why are there fair use exemptions or terms?) If copyright isn’t mostly about incentives, by what standard do legislators decide these things? Does a 14 year term respect the right or violate it?  There are, of course, always fuzzy boundary questions when it comes to any sort of right. But a range between 14 years and life-plus-70 isn’t exactly a boundary question. How does Congress establish the morally correct level of protection to reflect in the law?

But wait, it gets weirder! Because this Lockean labor right is also supposed to extend to sound technicians and producers, who are apparently “robbed” by piracy.  Except… they have no copyrights; they provide a service for a fee to the actual copyright owner. If they’re being robbed, then the guy who makes off with my laptop is actually robbing Steve Jobs too!  Who knew?

Tags: Law


       

 

8 responses so far ↓

  • 1 Patrick // Feb 3, 2010 at 12:33 am

    Producers may not have copyright in the underlying musical work, but they often do own copyrights in the recordings. The copyright act actually lists sound recordings separately from musical works (§102) for this very reason.

  • 2 Zamfir // Feb 3, 2010 at 7:17 am

    That Steve Jobs comparison is less silly than it sounds at first. If laptop-stealing were extremely common and unavoidable, say on average a month between buying and theft, laptop-making wouldn’t be much of a business.

    That’s the analogy people make: by downloading music you “steal” directly from the “owner”, but indirectly you hurt the producers etc.

  • 3 Mike // Feb 3, 2010 at 10:33 am

    By that same logic I am stealing from Ford every time I buy a Toyota.

    Reading the actual text of the clause, it always seemed to me that the entire point of patents was that they do expire, encouraging inventors to get their ideas eventually into the public domain instead of keeping them as trade secrets that could disappear if a company went under. The limited term was the carrot to convince people to do that, not the primary purpose.

  • 4 Megan McArdle // Feb 3, 2010 at 1:39 pm

    There are “fair use” exemptions to other sorts of property laws, actually. Look at the law of easements, for example.

  • 5 Matthew Yglesias » Intellectual Property is About Consumers // Feb 3, 2010 at 1:59 pm

    […] want to turn this into an ideological food fight, so I’m eager to note that libertarians like Julian Sanchez and Tim Lee have the right take on this. I note that this issue is specifically addressed in the […]

  • 6 Led // Feb 3, 2010 at 2:23 pm

    Easements are not about fair use. I assume you’re talking about prescriptive easements and not easements voluntarily agreed to, but those easements are about not interrupting historical practice. It’s exactly the same idea as adverse possession or “squatter’s rights” or the old saw (that’s more right than most old saws) that “possession is 90% of the law.” You’re better off not thinking about intellectual property as “property” in the technical legal sense because it causes all sorts of doctrinal confusion.

  • 7 Sympathy For The Record Industry « Around The Sphere // Feb 3, 2010 at 2:32 pm

    […] Julian Sanchez on Bunch: Call this the Lockean theory of copyright—a theory conspicuously absent from the Constitution’s Copyright Clause, which ties “exclusive rights” to the promotion of artistic and scientific progress. The thing is, this reading seems to make patent law a gross violation of the same right. Doesn’t it “rob” those who independently replicate a patented invention the right to profit from their labor? […]

  • 8 Megan McArdle // Feb 3, 2010 at 4:33 pm

    Yes, obviously, I do not mean that easements are exactly comparable to fair use. What I mean is that there are all sorts of laws that allow others to use your tangible property without your permission for various reasons.

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