against an access right

Some people have argued that any unauthorised use of copyright material is likely to prejudice the legitimate interests of the copyright owner, and that market-based solutions, or statutory licences, are the most effective way of ensuring a balance between the copyright owner's rights and the ability of others to use copyright material. Fortunately, this position is supported neither by policy nor by law. The Berne convention requires that use of copyright material doesn't unreasonably prejudice the legitimate interests of the copyright owner. These concepts, reasonable and legitimate, imply a balance which is much more subtle than the simple desire of a copyright owner to be remunerated.

When we talk about legitimacy, we get to the heart of copyright policy. Copyright is not a natural right; it does not exist of its own. It is a false reification to assume that a copyright owner has a legitimate interest in being compensated for all uses of his or her work. Copyright exists for certain limited purposes. In the US Constitution, copyright exists to “promote the progress of science and useful arts”. In Australia, we have no such explicit constitutional limit. But that is not to say that copyright law does not have a purpose or objective.

Copyright law is generally said to exist for one of a number of reasons. From an economic utilitarian perspective, it exists to prevent market failure which results in the underproduction of classic public goods. Because expression is non-rival, in that many people may benefit from it at the same time, classical economic theory tells us that people are unlikely to invest in its creation unless the state provides legislative excludability. Copyright therefore exists as a necessary evil which provides state-granted monopoly rights in order to provide the necessary incentives to create. From an economic approach, copyright must have limits, whether that be because not all creation is economic, or because at some point the transaction costs exceed the incentives, or because the losses due to exclusion from the benefits of a good which can be reproduced at near-zero cost outweigh the benefits copyright owners gain from any increased incentives. The important thing to remember about copyright here is that while it may act in the market, it is not of the market; it is a tool to limit the effects of market failure, subject to our wider social policy.

Another justification for copyright, and particularly moral rights, is personality theory. Descending from Hegel, this romantic theory argues that an expression embodies the personality of the author, because it is through the creation and acquisition of property that a person self-actualises upon the world. Harm to a person's expression, therefore, was direct harm to the individual author, and should be restrained as such. This theory does not focus on economic harm as such, but is instead relevant to undue commodification, or material distortion of expression, or failures in attribution. One of the key limits to copyright when expression is viewed as an extension of the self, is that acquisition of property does not limit the ability of future authors to self-actualise through their own appropriation.

On the other hand, some argue that copyright exists as a property right inherent in labour. Drawing from John Locke's work, an analogy is drawn which seems to require that individuals be granted property rights in the fruits of their intellectual labour. Notwithstanding any difficulties in porting Locke's theory from the physical commons to the field of ideas and expression, proponents of this view often conveniently forget the very important provisos to Locke's theory, which place limits on the ability of an individual to appropriate goods from the commons. The two provisos are (a) that one leave “enough and as good” for others, and (b) that a person not appropriate more property than they can use, which would lead to harmful waste. Applied to copyright, these provisos clearly place limits on the ability of a copyright owner to claim exclusive rights in all uses of his or her works; at a minimum, the ability of future users to innovate and express themselves must be preserved.

These three theories illustrate a more nuanced application to copyright than copyirght maximalists would have us believe. When we consider what the legitimate interests of a copyright owner are, we must consider not only the desire of copyright owners to be remunerated, but also the interests of the public in being able to access and built upon expression. The romantic notion of an author labouring in isolation is patently false – all expression fundamentally draws upon the work of those who have gone before. The ability of future authors to express themselves must be recognised in copyright law, and cannot be simplistically limited to a requirement to pay for each use of prior expression. The theory simply does not support such a reification. The losses to those who cannot afford to pay, the losses to creativity and accidental discovery, and the losses due to transaction costs all combine to a general principle that copyright is not, and should not be, an absolute right.