Copyright and distributive justice.

• Author: Hughes, Justin

INTRODUCTION I. RAWLSIAN JUSTICE, HOW RAWLS USES "PROPERTY," AND THE PROPRIETY OF USING RAWLS A. A Primer on Rawlsian Justice B. High Concepts, Practical Application II. PRACTICAL RAWLSIAN JUSTICE, DISTRIBUTIVE REALITIES OF COPYRIGHT A. The Difference Principle and Jobs, Income, and Wealth from Copyright 1. Income to Creative Professionals in the Music Industry 2. Copyright Interests of Individuals Through the Lens of Litigation B. What About Lost Utility Among Poorer Consumers from Above-Margin Prices and Deadweight Losses? C. Copyright and the Just Savings Principle D. Copy right and Conditions of Fair Equality of Opportunity--and the Hard-to-Miss Experience of African Americans 1. Observations to Date About Copyright and African Americans 2. Copyright and Positions "Open to Everyone Under Conditions of Fair Equality of Opportunity" 3. Further Considerations on Copyright and "Conditions of Fair Equality of Opportunity" III. DISTRIBUTIVE BELLS AND WHISTLES OF COPYRIGHT--CURRENT AND PROSPECTIVE A. Procedural Protection of Authors B. Termination of Transfer in American Copyright Law 1. The Clear Intent of Termination Is Redistribution of Wealth 2. The Work-for-Hire Doctrine in Relation to Redistribution of Wealth C. The Emerging Trend Toward Droit de Suite D. Other Redistributive Bells and Whistles--Real and Prospective CONCLUSION INTRODUCTION

Is our copyright system basically fair? Does it exacerbate or ameliorate the skewed distribution of wealth in our society? Does it do anything at all for disempowered people, people at the bottom of the socio-economic hierarchy? In this Article we engage these questions. Our goal is to begin a more comprehensive discussion of the effect the copyright system has on the allocation of wealth in our society.

These questions of distributive justice are atypical in scholarship on copyright law. (1) To begin with, the dominant methodological approach in the field emphasizes incentives for aggregate production of information goods. (2) The primary aim of this utilitarian framework is to provide economic encouragement to creators while insuring maximum access to the works creators produce. Put differently, the traditional utilitarian theory sees copyright incentives as the mechanism through which society regulates the reward to creators. The goal is to set the incentives just right, so society receives the maximum number of works of the highest quality at the lowest possible overall social cost. A hefty chunk of this literature has sought to cast doubt on the need for copyright--or at least copyright in its present form and strength--to generate all the original expression we have (or want). (3)

More recently, academic commentators have started to focus on the "distributive" aspects of copyright and, not surprisingly, this work has shadowed the incentive-based analyses by focusing on information distribution. Commentators working this territory have raised concerns about the general diffusion of knowledge, (4) about availability of materials in minority languages, (5) and about the ability of subsequent creators to create new expression using existing, copyright-protected expression. (6)

How much wealth copyright incentives create--and who holds that wealth--are at best secondary concerns. The closest many scholars get to recognizing copyright's direct effect on income and wealth is to note that large corporate interests, and not individual creators, wind up enjoying copyright's bounty. Copyright scholarship is replete with what we call the "corporate copyright trope," i.e., that the "bulk of [copyright's] expansion has enriched copyright intermediaries, rather than creators and readers," (7) that "increasingly intellectual properties underwrite the 'private' sovereignties of multinational corporations," (8) and that "there is data aplenty to suggest that most creative people don't enjoy significant benefits from the operation of copyright--at least in comparison to those which accrue to firms that function as intermediaries between creators and audiences." (9)

In fact, there is no such data. On most occasions when the corporate copyright trope appears, it is simply a rhetorical move in favor of diminished copyright protection. (10) In general, copyright scholarship sees the income of creative people--if it sees it at all--as a means to an end: the important job of copyright is to stimulate production of new works. The wealth of creators--its level and distribution--is of little interest.

Not so in this Article. The level and distribution of wealth flowing to creative individuals is our central concern. Because we care about copyright's impact on the distribution of wealth, we focus less on the creative works that copyright induces and more on the money earned as a result of these works. We inquire into whether the pattern of earnings from copyright can be called fair. In particular, we review copyright law against the framework for distributive justice established by John Rawls in his seminal A Theory of Justice.

To do this, in Part I we set out the basics of Rawlsian distributive justice and, in Part II, we apply Rawls's principles to the real world of copyright. We take a close look at the incomes of creative professionals, particularly in the music industry, and the crucial role copyright plays in helping them earn a living. In this Part we also consider the Rawlsian requirement that a society provide fair opportunities for everyone to aspire to any career. We show that copyright does quite well under this principle in one concrete way: copyright provides the basis for the income and wealth of most of the wealthiest African Americans in the United States. Part III continues the theme, looking at some detailed rules in copyright law that further the goal of distributive justice in ways that rules of real and chattel property do not. We reach two conclusions: first, that copyright in its current form is a powerful tool to empower creative individuals economically. And second, that further reforms could enhance copyright law's role in adding to the income of creative individuals. This has special relevance in a time of increasingly skewed income distribution and a digital economy that concentrates wealth with information aggregators and "those who own the top machines." (11)

1. RAWLSIAN JUSTICE, HOW RAWLS USES "PROPERTY," AND THE PROPRIETY OF USING RAWLS

   Before delving into a discussion of Rawls's vision of distributive justice, the practical realities of copyright law for creative professionals, and how those realities sene (and could better-serve) distributive justice, we begin by considering an important criticism: How can we argue that Rawls's ideas apply to intellectual property when he did not touch on intellectual property in his writings? For example, concerning those in the IP field who develop theories based on "John Locke, or Hegel, or, more recently, Rawls," Mark Lemley has opined "those theories have more than their fair share of problems, starting with the fact that none of these latter-day prophets of IP actually included IP at all in their theories." (12)

   We consider this sort of critique to be antithetical to the scholarly tradition: a tradition of building on, elaborating, and extending the insights of thinkers who came before us. We agree that it would be problematic to speak of "Locke's theory of patents" or "Hegel's theory of trademarks," (13) but it is completely legitimate to consider a Lockean theory of patents or a Hegelian analysis of trademark semiotics. The general principles these philosophers laid down are capable of application to all manner of problems, issues, and institutions that either did not exist when these theorists were writing or that they simply never considered. It is in this spirit that we speak here not of "Rawls's approach to copyright," but "a Rawlsian approach to copyright."

   1. A Primer on Rawlsian Justice

      Rawls's great life project was to figure out moral principles for structuring a fair and just society. His achievement was, in Kenneth Arrow's words, "[a] profound work [that] has caused us all to reconsider simple-minded utilitarianism." (14) Rawls's system of thought begins with a Kantian focus on the rights of each individual, but then integrates this with an emphasis on the fair distribution of resources. This confluence of Kantian individualism and collective concerns, together with a highly analytical way of thinking, marks Rawls's major contribution to the theory of social justice. The clearest statement of the twin considerations at the heart of Rawls's project appears in his two principles of justice, which he states as follows:

      First Principle

      Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.

      Second Principle

      Social and economic inequalities are to be arranged so that they are both:

      (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and

      (b) attached to offices and positions open to all under conditions of fair equality of opportunity. (15)

      The first of these is commonly called the "Equal Basic Liberties Principle"; the second principle is commonly called the "Difference Principle." By permitting "inequalities" in income and wealth, the second principle distinguishes a libera] system's distribution of wealth from a communist or egalitarian distribution of wealth. (16) But the second principle legitimates only those inequalities that "benefit ... the least advantaged"; where "the expectation of the representative occupant of the least advantaged 'place in the distribution of income and wealth' [is] maximized." (17) Put differently, a society ought to tolerate "only those social and economic inequalities that work to the advantage of the least well off members of society." (18) The second part of the "Difference Principle" (2(b) above) is sometimes called the...