Economies of desire: fair use and marketplace assumptions.

AuthorTushnet, Rebecca
PositionBoundaries of Intellectual Property Symposium

ABSTRACT

At the moment that "incentives" for creation meet "preferences" for the same, the economic account of copyright loses its explanatory power. This piece explores the ways in which the desire to create can be excessive, beyond rationality, and free from the need for economic incentive. Psychological and sociological concepts can do more to explain creative impulses than classical economics. As a result, a copyright law that treats creative activity as a product of economic incentives can miss the mark and harm what it aims to promote. The idea of abundance--even overabundance--in creativity can help define the proper scope of copyright law, especially in fair use. I explore these ideas by examining how creators think about what they do. As it turns out, commercially and critically successful creators resemble creators who avoid the general marketplace and create unauthorized derivative works (fanworks). The role of love, desire, and other passions in creation has lessons for the proper aims of copyright, the meaning of fair use, and conceptions of exploitation in markets.

TABLE OF CONTENTS INTRODUCTION I. THE OFFICIAL STORY: "NO MAN BUT A BLOCKHEAD EVER WROTE, EXCEPT FOR MONEY" II. AUTHORS ON AUTHORSHIP: THE ECSTASY OF INFLUENCE A. Beyond Preferences: Compulsion, Love, and Other Narratives of Creativity B. The Women Who Love Too Much: Leaving the Market Behind III. LAW UNLIKE LOVE: SOME IMPLICATIONS A. What We Talk About When We Talk About Creativity B. My Own Kind of Freedom C. The Space Between Us: Intermediaries and Market Logic CONCLUSION INTRODUCTION

As the Supreme Court has explained, "[t]he economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in 'Science and useful Arts.'" (1) But if that economic philosophy is only partially correct as an empirical matter, the implications for copyright are substantial. Copyright's incentive model largely bypasses a persuasive account of creativity that emphasizes a desire for creation, grounded in artists' own experiences of creation.

At the moment that "incentives" for creation meet "preferences" for the same, the economic account of copyright loses its explanatory power. This piece explores the ways in which the desire to create can be excessive, beyond rationality, and free from the need for economic incentive. Psychological and sociological concepts can do more to explain creative impulses than classical economics. As a result, a copyright law that treats creativity as a product of economic incentives can miss the mark and harm what it aims to promote. The idea of abundance--even overabundance--in creativity can help define the proper scope of copyright law, especially in fair use. I explore these ideas by examining how creators think about what they do. As it turns out, commercially and critically successful creators resemble creators who avoid the general marketplace and create unauthorized derivative works (fanworks) when they talk about why and how they create. (2) Their similarities in motivation and inspiration help explain why exclusive rights must be carefully limited if we are to achieve the creativity to which a free and vibrant society aspires.

Several notes of caution are in order: First, though my discussion here focuses on creators' own accounts of their creative processes, I am not arguing that creative impulses exist in isolation from social structures, any more than creators themselves do. Rather, the individual reports of how creativity is experienced as unpredictable, tyrannical, obsessive, and joyful are consistent with the thesis that creativity arises from unplanned and stochastic encounters with the world around us. (3) One reason that economic narratives are so limited is that they cannot tell us how preferences to create are shaped, nourished, or crushed by the social structures that inevitably frame all human interaction.

Second, I am not arguing that extrinsic incentives are irrelevant or disrespectable, whether they are monetary or nonmonetary (reputation is probably the most common nonmonetary extrinsic motivation dissected in the literature on copyright and creativity). (4) Incentives do matter, especially for intermediaries--a topic to which I will return--and even if they didn't, the availability of rewards, some of which are generated by copyright, would still affect the extent to which some creators could afford to satisfy their preferences to create. What I aim to do is draw attention to the lived experience of many creators, which is (and always has been) richer and messier than the language of incentive can accommodate. Desire, love, pleasure: these are concepts we need to theorize creatively, even if the law has difficulty accommodating them. Once we recognize that copyright's abstract incentive story bears little relationship to the reality of much creative practice, we can better appreciate what copyright can, and cannot, do for authors.

Part I briefly canvasses the standard economic incentive-based story of copyright and a few of its discontents. Part II offers some thicker accounts of creative experience, focusing on creativity as a need that, like love, often strengthens as it becomes more familiar. Desire, not calculation, drives much creative practice. Part III looks at a few implications for copyright doctrine, including fair use, where questions of passionate response to existing works often get addressed.

  1. THE OFFICIAL STORY: "NO MAN BUT A BLOCKHEAD EVER WROTE, EXCEPT FOR MONEY" (5)

    Justices of the Supreme Court, like most lawyers, are formally committed to copyright's incentive story, which is elegant and simple: "copyright law serves public ends by providing individuals with an incentive to pursue private ones." (6) Prominent academic accounts of copyright law likewise accept and elaborate on incentive theory to explain why authors create. (7) At its extreme, incentive theory posits that maximum incentives require maximum control:

    The fundamental premise of our copyright law is that the best way to encourage the creation of valuable works is to let authors capture the market value of those works. This means that even if we don't want to give the Dr. Seusses of the world power to enjoin uses that offend them, we do want to protect their ability to share in all the profits that their work gives rise to. (8) There are a number of problems with this account even on its own terms. One of the biggest is that rights don't mean payment. There is little hard evidence about the relationship between copyright and creativity. What empirical evidence exists does not engender confidence that increases in copyright protection spur creativity. (9) A significant factor in this failure of incentive is that, regardless of the strength of protection, it is the likelihood of success in the market--a highly unpredictable variable, and one that law can do little if anything to affect--that is key to whether new authors reap rewards from creating works. (10)

    Separately, Mark Lemley and Brett Frischmann, among others, have compellingly criticized the extreme control-everything version of copyright theory. Positive externalities or "spillovers" and free riding are a pervasive, beneficial, and necessary part of markets of all sorts, including intellectual property markets. (11)

    I will not restate these objections here. My aim is to show how easily, using the language of economics, monetary incentives come to be labeled both necessary and sufficient for creativity. For example, reacting to the explosion of uncompensated, uncontrolled creativity on the Internet, Robert Merges proposes to protect that creativity by adding property rights. (12) In this account, people are acting against their best interests, failing to notice that the proper incentive structure is not in place. The current level of nonpropertized creativity is simply an anomaly, one that would be better served by being brought within copyright's control. (13)

    Other economically-minded copyright reform proposals partake of the same monetary-incentive-based assumptions. Judge Alex Kozinski, an influential judicial voice on intellectual property matters, and Christopher Newman have proposed to minimize injunctions in copyright cases by (1) eliminating the fair use doctrine in cases of unauthorized derivative works, but (2) instead of granting injunctions, requiring parodists and other fair users to share the profits attributable to the use of the original's copyrighted elements. (14) They argue that there should be no difference in the treatment of unauthorized commercial and noncommercial works. (15) Yet their solution requires, as a baseline assumption, that profits will routinely be available. If many unauthorized derivative works are noncommercial and there is no money to pay the copyright owner, those works will be suppressed. (16)

    What about individual variations in creativity? No matter how much money J.K. Rowling makes, very few people have the ability to write the next Harry Potter series. The conventional theory treats capacities and motivations to create as exogenous variables--tastes, or preferences, which affect individual responsiveness to copyright's incentives, but are otherwise not amenable to analysis. (17)

    Even prominent proponents of limiting copyright have focused more on ways in which nonmonetary incentives can replace money than on creators' perspectives on the sources of inspiration and spurs to creativity. (18) As Tom Bell suggests, economically minded theorists interested in nonmonetary incentives have remained largely uninterested in thicker accounts of creative motivation: "We need not specify what motivates ... authors [who share their works for free or for nominal prices].... We need only observe that ... non-monetary incentives...

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