The Los Angeles Federal Court’s decision in 2015 on whether the song ‘Happy Birthday’ is copyright protected has once again focused discussion on the rationale for extending intellectual property protection for works which have been around for decades. This provides the perfect backdrop for re-evaluating the philosophical justifications of copyright law. While the most justification most cited in copyright literature can be traced back to John Locke’s labour theory, it is incomplete and inadequate at best. This blog thus examines other alternate philosophical rationales for copyright law and attempts to identify a theory which helps explain the need for this intellectual property protection in totality.
This blog first discusses the classical justifications for copyright- utilitarianism, the labour theory, and the personhood approach. Failing to find a comprehensive justification from these classical theories, it briefly looks at some more justifications of more recent origin such as the social planning theory, traditional proprietarianism and finally the pluralist approach.
The utilitarian justification of copyright hinges on incentivizing innovation and intellectual productivity such that the utility gains from increased innovation outweighs the losses caused by their monopolization. This follows from Bentham’s argument that without the protection of laws, and inventor would find his inventions imitated by others without any expense to themselves, and the inventor would therefore not be able to reap his deserved economic benefits.
The utilitarian argument, therefore, is that restricted monopolies help promote innovation, and to foster innovation, the legal regime should recognize limited (in duration and in scope) exclusive rights in intellectual property. This is not a new justification and the earliest examples of its use in validating copyright can be found in the first copyright law of the modern civilization, the Statute of Anne, 1709 and the US Constitution.
The basic tenet of the utilitarian argument is uncontestable- that a creator needs economic incentives to create and innovate- especially since the nature of most copyrighted goods make them susceptible to imitation by other free-riders. The tension lies in striking the compromise “between access and incentives” and herein lies the failure of this theory as a justification for copyright law.
The utilitarian argument seeks to provide copyright protection to further the public good from promoting creativity. The focus is not on creating an independent entitlement for the creators. The question that arises then is whether copyright protection is justified only when they are necessary to further public goals. Some utilitarian scholars seek to answer this by suggesting that copyright protection is available only to the extent necessary for socially beneficial creations, and posit the theory of fair use as an answer for protecting sufficient raw material in the public domain for future creators. Providing the creators too much incentive therefore runs the risk of converting “public domain into a fallow landscape of private plots”. This tension thus cannot be resolved under the utilitarian justification because it incorrectly emphasizes the property notion of the copyrighted product while overlooking the prerequisites of a richly endowed public domain.
The most common jurisprudential theory used to support the existence of copyright laws is John Locke’s labour theory. One of the earliest cases to rely on the labour theory is Sayre v. Moore, which held that “men of ability, who have employed their time for the service of the community, may not be deprived of their just merits, and the reward of their ingenuity and labour.” The Lockean labour theory is based on two precepts. The first being each person enjoys a property right in his ‘person’ and in the product of his labour- the famous Lockean product of labour metaphor. The second operates to restrict these property rights by adding the provisos of “no harm” and “enough and as good” to the first.
Locke’s premise is that men share a common right in the ‘state of nature’. To justify an individual man’s property right when he takes something out of the common then becomes difficult. To overcome this Locke relies on the product of labour concept and propounds that one has a natural right to the fruits of one's labour. To limitations appear through the “no-harm” proviso which states that property right exists as long as the taking does not interfere with the common good. Locke explains this mean that a person cannot appropriate or extract more than what is required for his use, stating that “nothing was made by God for Man to spoil or destroy”. Further Locke also added the proviso that protected appropriation so long as “enough as good” was left remaining in the common or the public domain in this case.
While the "enough as good" proviso might help solve the problem of ensuring sufficient raw material which was earlier identified with the utilitarian justifications, the Lockean theory also suffers from an inherent tension between private acquisition rights and the interest of the public in the common. While one can argue that copyright is not an absolute right and that ideas as raw materials are non-rivalrous, the fact still remains as Craig had noted that his theory continues to carry the risk of “copyright expansionism”. The other challenges to the Lockean theory arise from its theological bases and without theological presuppositions the legitimacy of one’s ownership of one’s self or labour becomes unclear.
The Kantian and Hegelian philosophies of personhood provide another justification for copyright laws. It is similar to the Lockean labour theory, with the difference being that instead of labour, one acquires property rights by mixing his will or personality. The Hegelian theory essentially claims that “an idea belongs to its creator because the idea is the manifestation of the creator’s personality or self”, and recognizing these property rights is important for recognition and acknowledgement of one’s personality by others and helps foster individual freedom.
The wide scope of the Hegelian personality approach runs the obvious risk of increasing the scope of intellectual property. This in turn can be restrictive of individual freedom because it limits cultural participation. This theory is especially apt when conceptualizing copyright in artistic and literary forms of expression- these can easily be conceptualized as extensions of the artists’ selves. But it does not provide the same logical consistency when applied to non- expressive products such as industrial processes and technical software, which are all currently copyrighted. The Hegelian theory also fails to provide adequate justification for joint creative enterprises.
Rationalizing copyright in terms of extensions of the creator’s personality also fails to justify sale or transfer of copyright- it is difficult to understand how individual freedom could be advanced when an author is alienated from and retains no control over, his creations. This is because the personality theory posits the sovereignty and control over one’s creation/ideational content as an essential virtue . On issues such as these and on the question of an author claiming sovereignty over the work to restrict further communication when a work has already been communicated to the world at large, the personality theory fails to throw up a consensus.
Other modern approaches
In light of the failure of the above mentioned classical approaches to provide a comprehensive justification for copyright, some recent works have sought to provide alternate philosophical justifications. One of the more prominent of these theories is Fisher’s “Social Planning Theory”. This theory emphasizes “a vision of just and attractive culture” where the vision includes elements like consumer welfare, an abundance of ideas and information, a rich artistic tradition, democracy etc. The theory focuses on the tension between the expression promoting nature of copyright and the subsequent limits it imposes which restrict later democratic and expressive discourse. It advocates a relatively less rigid and more flexible intellectual property and copyright laws to facilitate a more expansive cultural social interaction and exchange.
The other recent approach seems to focus on copyright as property. Prevalent among this is theory of “traditional proprietarianism” which emphasizes on copyright as another bundle of rights associated with the right to traditional tangible property- rights of exclusive use and possession, rights against trespass etc. This theory serves an important link connecting different approaches and the real world- it secures and protects for labourers their property right in their authorial and artistic works and fruits of labour.
The sixth theoretical approach is authorial constructionism. This approach critiques the romanticization of the author and deconstructs the authors as a vessel which mixes several influences and experiences. The scholars of this school argue that authorial creations are collaborative exercises and overemphasizing the authorship concept undermines this collaborative nature. These theories however fail due to their unwillingness to extend the argument to its logical conclusion and therefore suggest that the copyright should vest with the society providing the experiences and influences- essentially advocating the end of copyright.
Conclusion - Searching for an answer in Pluralism
The answer to the insufficiencies of the classical and more recent copyright arguments can be found in pluralism. As the leading proponent of this school of thought, David Resnik suggests pluralism can be the answer because given the broad and diverse nature of the different rights that copyright encompasses, one needs an intellectual theory which can accommodate different ethnic, cultural, religious, moral and philosophical beliefs and use different arguments to account for diverse practices globally.
A pluralist account can make these accommodations because of its contextual approach, where the different values at stake are weighed to determine which value should have priority in which situation. The question then arises on how these competing values can be ranked. The pluralist answer is to look at the context to determine the priority. To elaborate, Resnik suggests that this ranking is done looking at the original, historical intent of the practice. For instance, with respect to “intellectual credit” of say authors, history has traditionally treated the interests of the authors and the creators as being of paramount importance. This helps explain the current thrust of copyright law.
The contextual approach of pluralism and the originalist approach to the priority rankings helps provide the much needed theoretical cohesiveness to a regime seeking to justify an expansive intellectual property, or more precisely copyright, regime. However, the obvious critique also cannot be ignored- pluralism only helps explain or more accurately, justify why the laws stand as they do today. However, it does not necessarily answer the question of whether these laws should ideally be framed in that fashion. Also, while pluralism might provide an answer with respect to practices where there is a precedent, or some existing policy, the ranking priorities will fail to provide cohesive answers for newer intellectual property regimes where there is no precedent and one is trying the make new policies.
Thus, even after a survey of all existing justifications for copyright, while pluralism makes the strongest case, the search for a comprehensive philosophical rationale on which the concept of copyright can be defended proves elusive. And therefore, news reports like the “Happy Birthday” copyright news report still evokes questions on why a decades old song should remain out of the public domain without any convincing or conclusive answer!
PS: In 2016, a U.S. court approved a settlement that will put the "Happy Birthday" song in the public domain. It ends the ownership claims of Warner/Chappell Music, the music publishing company that has been collecting royalties on the song for years.