The Pope's Copyright? Aligning Incentives with Reality by Using Creative Motivation to Shape Copyright Protection

• Author: Lydia Pallas Loren
• Position: Jeffery Bain Faculty Scholar and Professor of Law, Lewis and Clark Law School
• Pages: 2-41

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In June 2006, the Vatican forcefully asserted its copyright in all papal texts, sending a bill for past royalties to one publishing house and indicating that "prior agreement" with the Vatican would be necessary for newspapers to publish excerpts from officially released papal documents.¹ If the Vatican were to assert its copyright against a publisher or a newspaper in U.S. courts, how would its claim be treated? Presumably the creation and distribution of papal texts are motivated by considerations other than monetary reward. Thus, it is safe to assume that the Pope and the Vatican do not need the incentive created by copyright law in order to create or distribute papal writings. Should this affect the eligibility for or the scope of copyright protection? Papal texts are not the only category of works where the incentive of the copyright is not the primary motivating force for the creation and dissemination of the work. If the driving motivation for the creation of certain works is unrelated to copyright protection, should that play a role in determining either the existence of copyright protection, or the scope of rights that copyright law grants to the creators of those works?

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Current U.S. copyright law, while based on a utilitarian theory, does not expressly consider motivation in determining protection afforded to copyright owners. Indeed, when looking solely at U.S. copyright law, it appears that the U.S. adheres completely to the notion that "no man but a blockhead ever wrote, except for money."² This Article argues that while the grant of copyright protection without reference to motivational factors may be appropriate, the law should take creator and distributor motivation into account in determining how robust the copyright protection afforded should be.

The approach argued for in this Article will result in less robust, or "thin,"³ copyright protection for those types of works that do not require the incentive of the copyright to be created and distributed.⁴ As explained in Part I, this approach is entirely consistent with the utilitarian underpinnings of U.S. copyright law. If copyright law is designed to guard against underproduction of intangible assets that, without the legal rights afforded by copyright, would be a public good,⁵ then it should not be problematic to provide less protection for those types of works that appear to not risk underproduction absent legal protection. Providing less protection to certain categories of works, however, may do harm to an author's rights view of copyright law. This harm could be counterbalanced by a stronger right of attribution than is currently provided to authors of creative works under U.S. copyright law.⁶

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It is time to take into account the social cost of uniform levels of protection in copyright law. All works are not created equal; different types of works are motivated by different considerations. Fundamentally, many works that meet the extremely weak requirement of some minimal degree of originality are not created as a result of the monetary incentive offered by copyright protection. In addition to papal and other religious texts, examples of other types of works created and distributed without the primary motivation being the marketable right provided by copyright law include, but are by no means limited to: email and other personal communications, model legal codes, standard portrait photography, amateur/home photography, architectural works, advertising artwork and advertising copy,⁷ scholarly articles,⁸ and legal documents.⁹ In this Article, these types of works are referred to as "differently motivated works."¹⁰ While the protection afforded by copyright law may be important for a variety of reasons to the creators or distributors of differently motivated works, robust copyright is not necessary. Thus, with respect to differently motivated works, there is no reason why society should endure the cost of uniformly robust copyright protection for these types of works.

After surveying the normative reasons for candidly using motivation for creation as a basis for distinguishing different levels of protection in Part I, Part II examines the costs associated with copyright protection. Part III argues that complete elimination of copyright protection for differently motivated works would be inappropriate. Part IV describes how the current Copyright ActPage 5 does not expressly consider motivational realities in granting or calibrating copyright protection.

The final sections of the Article explore the ways in which copyright law could vary the level of protection afforded to differently motivated works. While statutory changes could best accomplish the much needed recalibration, industry capture of the legislative process in the field of copyright law is well documented,¹¹ making legislative change unlikely. Thus, a more realistic approach is for courts to interpret the current statute and provide appropriately "thin" protection. As explored in Part V, courts should incorporate a motivational inquiry in establishing the level of similarity needed for non-literal infringement and should engage in a more searching analysis of the second and fourth fair use factors when a differently motivated work is at issue. Finally, Part VI provides some preliminary ideas on statutory changes that would accomplish appropriate tailoring of rights.

I Why Motivation is an Appropriate Consideration in Determining Scope of Copyright Protection

Should courts explicitly consider motivation in determining the scope of copyright protection? The answer to this normative question depends on what one believes to be the purpose of copyright law. Generally, justifications for copyright protection fall into three broad categories: utilitarian, natural rights, and author's rights. The utilitarian justification is based on a belief that without the protection afforded by copyright law, creative works would be under-produced.¹² The natural rights justification holds that providing a legal means of protection for the products of a man's creativity is the morally right course of action.¹³ A Hegelian based author's rights view of copyright posits that providing protection for the creations of the mind helps individuals become fully self-realized.¹⁴ Continental European copyright laws stemPage 6 from an author's rights conception recognizing the bond between creator and the intangible work created.¹⁵

In the United States, the justification for copyright protection is overwhelmingly utilitarian.¹⁶ The law grants protection for copyrighted works in order to achieve a goal-the advancement of knowledge and learning.¹⁷ It is believed that without the marketable right of the copyright there would be insufficient incentives for the creation and distribution of creative works.¹⁸

The intangible asset that the law identifies as the copyrighted work can be thought of as a "public good" in the economic use of that phrase. Characterized by non-rivalous consumption and nonexcludability, without legal protection it is feared that, like all public goods, copyrighted works will be under-produced.¹⁹ The grant of exclusive rights to creators of copyrighted works is designed to correct for potentially sub-optimal production by providing a marketable right to those creators. This marketable right creates an incentive for production. As a marketable right, the magnitude of the incentive is, in theory, perfectly calibrated by the invisible hand of the market. The more "in demand" a work or type of work is, the greater the potential reward and thus the greater the incentive will be to create and distribute those types of works. The value of creators' and distributors' rewards is linked to the market for the works themselves, with greater profits made possible by copyright protection.

The utilitarian theory posits that without the legal protections afforded by copyright, creative individuals and entities would not have the same level of incentive to create and distribute new works. Without legal protections, popular works would be copied by competitors and the price driven down to the marginal cost ofPage 7 each copy. The original creator and distributor might not be able to recoup expenses incurred in the creation of the work and, at a minimum, would not be able to obtain as much profit in the face of direct competition.²⁰ Preventing copying through copyright law allows for higher profits for copyright owners, thereby creating the...