A note on incentives, rights, and the public domain in copyright law.

• Author: Drassinower, Abraham
• Position: Symposium: Creativity and the Law

1. A GAP IN MINIMALIST COPYRIGHT DISCOURSE

   The idea that the purpose of copyright law is to provide incentives for creativity is among the most fundamental and most established ideas in North American copyright discourse. (1) There can be no doubt, of course, that copyright discourse in North America is highly contested. Some regard it as nothing less than the site of so-called "copyright wars," of intense struggles--intellectual as much as practical, political as much as theoretical--between copyright maximalists and copyright minimalists, advocates of high copyright protection and advocates of low copyright protection. (2) This manifest presence of vibrant, vigorous, and vivid controversy, however, obscures the depth of the latent agreement that frames it. Few, if any at all, would contest the bedrock idea that copyright law is about providing incentives for creativity. (3) The pervasiveness of the hold that instrumentalism has over the North American copyright imagination is paralleled only by the ease with which that imagination summarily rejects or dismisses rights-based accounts of copyright law--accounts rooted in a vision of the inherent dignity of authorship.

   One of the nodal points of the copyright wars is the ongoing discussion about the expansion of copyright scope and copyright subject matter since the enactment of the Statute of Anne, (4) the world's first copyright statute, in eighteenth century England. Predictably, whereas copyright minimalists object strenuously to this expansion, copyright maximalists support it. Equally unsurprisingly, both maximalists and minimalists formulate their position from the shared standpoint of instrumentalist copyright theory.

   My purpose here is to offer minimalists some words of both caution and comfort. The cautionary aspect is that minimalism ought to be far more suspicious than it actually is about the instrumentalist hegemony in copyright discourse. Instrumentalist discourse is, in my view, part and parcel of the very expansion that minimalism seeks to counter. Copyright protection has consistently expanded since Donaldson v. Beckett (5) affirmed (a) the supremacy of the Statute of Anne over common law copyright, and (b) the still prevailing view that copyright law is not a juridical recognition of rights inherent in the act of authorship but rather a policy instrument designed to promote the public interest in creativity. Thus, historically speaking, copyright expansion has taken place and continues to take place under the supremacy of instrumentalism. To be sure, this historical correlation is not by itself sufficient to persuade us that instrumentalism is necessarily complicit in the constriction of the public domain. It does strike me as sufficient, however, to generate significant unease about any uncritical adoption of the instrumentalist paradigm in the name of the expansion of the public domain. (6)

   The comfort I seek to offer is that there are, of course, alternative accounts of copyright law. These accounts are none other than the rights-based accounts that, in its habitual endorsement of instrumentalism, minimalism dismisses far too summarily. One of the major complaints that minimalism levels against rights-based discourse is that, once enshrined as a matter of inherent dignity, the rights of authors under copyright law cannot be easily constrained. With this complaint in mind, I want to emphasize that, on the contrary, rights-based discourse envisions not only the claims of authorship but also, and therefore, those of the public domain as a matter of inherent dignity. The rights-based account of authorship is also a rights-based account of the public domain. My purpose is, in short, to generate minimalist unease about instrumentalism and to evoke the as yet largely unexplored potential of a rights-based minimalism. (7) At the very least, I seek to undo the widespread apprehension that rights-based accounts are necessarily maximalist accounts.

   Following a sketch of the shared terrain on which the copyright wars take place (Part II), I make some observations about minimalism as a critical stance seeking to oppose a particular normative conception of copyright law to the realities of copyright expansion (Part III). I then briefly describe the historical correlation between instrumentalism and copyright expansion (Part IV). I conclude with some remarks about the absence in instrumentalist discourse of an account of the necessary role of the public domain in copyright law, and about the presence of such an account in rights-based discourse (Part V).

2. A SHARED TERRAIN

   Because they unfold under the unifying aegis of instrumentalism, the so-called copyright wars are far less disruptive than they first appear. They are not foundational struggles about the very purpose and meaning of copyright. Rather, they resemble civil wars in which the combatants are equally faithful to the absent nation each feels the other betrays. By creating the appearance of controversy, the struggle between maximalists and minimalists sustains the underlying hegemony of the instrumentalist paradigm. As much as maximalists, minimalists deploy the concept of copyright as a way of providing incentives for creativity. The debate is not about the appropriateness of that concept but about the way in which it should be operationalized.

   Generally speaking, the minimalist view is not that copyright is about something other than incentives but that, while central, incentives to produce works of authorship are not the whole of the copyright story. The role of incentives must be grasped within the larger context of a view of copyright law as a balance between incentives and dissemination, creator-interests and user-interests. (8) An overemphasis of the incentive-function of copyright protection can sabotage the equally constitutive dissemination-function of copyright law. In a word, to use Jessica Litman's felicitous formulation, copyright is as much about reading and listening as it is about writing and composing works of authorship. (9)

   Of course, maximalism is by no means indifferent to the dissemination-function of copyright law. The maximalist point is that, as distinct from production, dissemination of works of authorship itself requires incentives, and that therefore the dissemination-function of copyright law is best supported not by limiting copyright protection but, on the contrary, by strengthening it further so as to render it serviceable from the standpoint not only of production but also of dissemination. (10) Not only authors but also publishers and distributors need incentives to fulfill their role in the copyright system. It is short sighted to believe that liberating use (or aspects thereof) from protection would be in and of itself sufficient to catalyze modes of dissemination consistent with the incentive-function of copyright protection.

   The minimalist challenge to the maximalist construal arises from a different assessment of the effects that certain levels of copyright protection (and hence certain corresponding levels of user rights or privileges within the copyright system) do or do not have, would or would not have, on the public interest in the production and dissemination of works of authorship that copyright is intended to serve. In this vein, the minimalist complaint against copyright expansion is not a complaint against that expansion per se. It is rather about the effects of that expansion. If copyright expansion were shown to be conducive to the public interest in production and dissemination, then there would be nothing wrong with it, at least from a copyright perspective. The dispute between maximalists and minimalists is in this respect largely empirical. It seems that the extent to which one feels uncomfortable with copyright in general, or with copyright expansion in particular, is related to the degree to which one believes that copyright does in fact promote the production and dissemination of works of authorship. But the bedrock proposition that copyright is an instrument designed to foster and disseminate creativity is common to maximalists and minimalists alike. It is the deeply common terrain that the copyright wars leave uncontested.

3. EMPIRICAL AND NORMATIVE

   To the extent that this common terrain remains uncontested, minimalist opposition to copyright expansion is likely to remain not only largely ineffective but also self-defeating. This is because the affirmation of the public domain requires challenging not merely the maximalist construal of the instrumental copyright calculus but also, and more fundamentally, the very premise that copyright is an instrumental calculus to begin with.

   In instrumentalist terms, the minimalist stance towards copyright expansion is that expansive copyright is at odds with copyright's own purpose of promoting creativity. Formulated in that way, the stance is particularly interesting because, faced with evidence it accepts that copyright has as a matter of fact expanded to such an extent that, systemically speaking, it stifles rather than promotes creativity, the minimalist stance nonetheless insists on the view that copyright is about promoting creativity. This ambiguity is, of course, easily resolvable. When faced with the empirical reality of copyright expansion, the minimalist stance distinguishes copyright as an empirical reality from copyright as a juridical order. The view is that the idea that copyright is about...