Intellectual Privilege: Copyright, Common Law, and the Common Good


Introduction: Copyright on the Third Hand


[An excerpt from the book, forthcoming in February 2014 from the Mercatus Center.]


Two views dominate the debate over copyright policy. The view from the left tends to question all restraints on expression, whether they arise from censorship, copyright, or the common law, and regards property rights as far from sacrosanct. From the right, in contrast, copyright looks like any other sort of property, which as such demands the same respect afforded to tangible property like land, buildings, and tools. Each viewpoint reveals important truths: copyright impinges on freedoms of expression, even while its exclusive rights stimulate the creation of new works. Both viewpoints, however, fail to perceive copyright's most distinguishing feature: its origin as a statutory privilege distinctly different from, and less justified than, the rights Americans enjoy thanks to the common law.

These pages build on that insight to offer a third view of copyright, one that does not quite fit the traditional left-right divide. You might think of it as a (not the) libertarian view, given that reasonable libertarians will disagree with many of this book's finer points and some of its major ones. Regardless of how you label this approach, though, it offers fresh answers to unresolved questions about the best way forward for copyright law and policy.


1. Left, Right, and Forward

Like most commentators, I largely agree that copyright represents not so much a form of property as a mere tool of policy, one designed to "promote the Progress of Science and useful Arts," as the Constitution puts it. I thus refer to copyright not as a form of intellectual property but rather a form of intellectual privilege. So understood, copyright's justification relies entirely on whether it provides a "necessary and proper" means to "promote the general Welfare, and secure the Blessings of Liberty."

As a creature of statute, copyright represents a notable exception to our natural and common-law rights. My friends on the left too often fail to make that distinction, instead classifying copyright as one of the many manifestations of state power that parade under the name of "property" and that they would subordinate to freedom of expression, security from want, distributional fairness, popular will, or other values. I instead hold that the common law, because it largely instantiates our natural rights, merits special regard. Hence my complaint against copyright: it violates the natural and common-law rights that we would otherwise enjoy to freely use our voices, pens, and presses. Hence also the argument I make to my friends on the right: copyright does not merit as much respect as tangible forms of property; as a statutory privilege to violate other, more fundamental rights, copyright instead merits critical scrutiny.

That critique of copyright hardly renders it unjustified per se. We can in theory excuse apparent violations of natural and common-law rights, such as the takings effectuated by taxation or the restraints imposed by antitrust law, as the costs of obtaining a greater good. So we might in theory justify copyright, too. But even then copyright would rank as a necessary evil at best. And even then, its status would rely on the contingencies of fact. If, for instance, as argued below, technological and social developments tend to render copyright unnecessary, it will someday rank as simply an evil. Perhaps, in some areas and in some respects, that day has already come. Regardless, we all have an interest in ensuring that copyright stays within its proper bounds. I thus offer here not an attack on copyright, but rather an appreciation of its noble goals, a frank account of its recent excesses, and some friendly advice about how to once more put copyright in the service of the general welfare.

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