Access, progress, and fairness: rethinking exclusivity in copyright

Edit: This article has now been published. You can get the final version here.

I’ve recently been working on a new copyright project. I really want to explore alternate models for supporting artists and encouraging the production of creative works that do not rely on exclusivity. In order to get there, I think there’s a particular need to address a fundamental issue of fairness: setting aside (for the moment) the utilitarian justification for copyright, what do authors of works deserve? This article maps out the project I want to look at over the immediate future.

This article has been accepted for publication by the Vanderbilt Journal of Entertainment & Technology Law. I would appreciate any feedback on the article itself or the broader project it introduces. I am acutely aware that this is just a scoping article at this stage – I don’t, of course, have the answers to the questions I raise.

Abstract

This article provides a detailed critique of the incentives/access binary in copyright discourse. Mainstream copyright theory generally accepts that copyright is a balance between providing incentives to authors to invest in the production of cultural works and enhancing the dissemination of those works to the public. In this article, I examine the two dominant theoretical justifications for copyright, utilitarian economic theory and rights-based approaches, and explain how the opposition of these justifications operates to entrench the incentives/access binary. I argue, in particular, that the conjunction of these theoretical approaches obscures the possibility of developing a model of copyright that is able to support authors without necessarily limiting access to creative works.

In recent years, high speed Internet access has brought enormous change to the way in which creative works – books, music, films – are distributed. The Internet brings the potential to greatly increase the public’s access to cultural and educational works. It is now technically possible to envisage a world where the common wealth of human creativity and knowledge circulates freely in a virtuous cycle of re-expression, where citizens can freely learn, play with, and re-articulate cultural expression. In this article, I argue that increasing access to cultural works should be a fundamental goal of copyright policy.

A number of models have been developed which attempt to show how authors can be remunerated without relying on artificial scarcity. In general terms, these models variously propose creating a public download levy, relying on service-based business models, making use of ‘crowdfunding’ and voluntary tips, or creating a restitutionary obligation on commercial users of creative material. I show that each of these models fails to provide a cohesive and convincing vision of two main functions of copyright: instrumentally, how cultural production can be funded and, on fairness grounds, how authors can be adequately rewarded. I conclude with three avenues for future research to investigate the viability of alternate copyright models. First, we need a better theory of fairness in the rewards that creative producers are morally entitled to. We should begin to build consensus as to when uncompensated access, or free-riding, should be considered to be unfair, separately from the economic public goods problem. This dialogue is necessary in order to identify when uncompensated access can be appropriate and when access predicated on a property or liability rule is necessary to prevent exploitation. Second, we need a better conception of the consumer: classical economic theory explains that copyright is necessary to induce consumers to pay for access to expressive works, but many non-scarce models rely on the voluntary financial support of fans. We need to investigate the factors that influence fans to support creative production beyond exclusivity and whether that level of support could scale to sufficiently fund a diverse range of productions at varying degrees of expense. Third, we need to identify what other interests that copyright currently covers ought to be protected in the potential absence of scarcity. The most obvious of these are the moral rights of creators which, in the US, are mostly protected by the exclusive rights. Copyright is also used (and misused) to protect other interests, however, including reputation and privacy. If our reliance on exclusivity is to be reduced, we may need complementary increases in protection for these other interests of authors and copyright owners. In order to approach this question, we need a better understanding of whether these noneconomic harms are wholly subjective and heterogenous (such that they can only be protected by exclusivity), or whether a set of relatively universal authorial rights can be constructed.