It is World IP Day Again–a day I very consciously use to harp on the importance of curtailing the reach of statutory exclusionary rights (See previous posts here and here). Today, I am going to do something different. I have been thinking a lot about harmonizing the fairness concerns that are associated with copyright’s justifications as well as the speech and cultural constraints that it creates. In the process of thinking, and detailed discussions with Profs. Molly V. Houweling and Talha Syed at Berkeley, I have been teasing out an alternate theoretical basis of the underlying idea that necessitates a legal policy to address concerns of fairness for those who perform expressions.
Over the years there are many theories of copyright’s existence that have done the rounds- flowing from a labor dessert approach (a centrally Lockean idea) focusing on rewards to the ex-nihilo creator; to a personality approach (a Kantian idea which is also often misattributed to Hegel[1]) focusing on recognizing the contributions of an ex nihilo creator through economic rights given the infusion of their personhood in their so-called original output; a utilitarian approach flowing from law and economics and its perspective of individual preference maximization through complete reliance on the market (the incentive-access paradigm); and a recent idea that focusses on a just and attractive culture (William Fisher, Madhavi Sundar, Neil Netanel, Talha Syed and Oren Bracha) by inducing diverse participation and a wider cultural sphere for effective self-determination and social construction. One alternate theory for the existential justification of copyright, which can be a subset of the last of these buckets–the just and attractive culture justification- is a theory of “enablement” (as against rewards or incentives or any other personality-oriented justifications) specifically originating as a need in a market society. This theory completely rejects any natural or transhistorical justification of such a policy and also, in no way, reifies copyrights as property rights or as the only legal tool that is plausible to achieve the specific purpose of enablement. As against giving a full-fledged justification in the space of a blog, I shall just be offering a teaser of what I am proposing (which is to be developed in the form of a law review article, hopefully sometime soon).
This is an extract from a draft I am building:
“The theory that I postulate here, distinct from a theory of copyright as rewards for labor, or the law and economics justification of incentives, is that copyright, as a matter of legal policy, is a historically specific [2] tool of enablement to allow for human flourishing. It is a tool meant to ensure that those who wish to expressively produce are free (or have the agency) to do so without worrying about fulfilling their basic economic needs in a modern market society. It is a tool to affirmatively protect those who wish to produce expressions from involuntary subjection to the logic of a historically specific market society[3] where realization of basic needs, that constitute human flourishing,[4] is dependent on market competition.[5] As a matter of legal policy, it specifically aims to enable (as against incentivize) those who perform expressions to sustain (i.e., at the least fulfill basic needs) economically, and be recognized, as well as flourish (as distinguished from theories of individual welfare) in a market society.”
To explain, in simpler words, the point of copyright law, often misunderstood, was, is, and has always been to protect “human beings” (not machines) who wish to express in their lives (as a writer, a musician, a dramatic performer, etc.) from the involuntary subjection to a market society, where their agency to express and participate in meaning–meaning is stomped by the requirement of meeting basic needs of one and one’s family–something only realised by participating in market competition. Being subjected to a capitalist or a market society is not something that these humans chose–they were born into it. Thus, the law needs to interfere and protect them from the coercive logic of the market–to freely enable them to speak and express themselves. Why? We want them to speak because it is speech and the dialectic that comes with it (through access and experience) that curates our ability to self-determine ourselves as well as the social ability to curate the culture (in its broadest sense) around us. The underlying goal of such a legal tool, according to me, is the freedom from (negative liberty) the coercive conditions of a market society that impinge upon one’s ability to express, and the consequent freedom to (positive liberty) participate in social self-determination and cultural meaning-making by expressive agency–through legal economic enablement and recognition. Ironically, however, copyright often relies on a market logic for its allocation of resources.
To reiterate, the point of Copyright law/ or in fact any such tool of legal policy [and I am not committed to copyright law as the tool because of its complete reliance on the market as a method of allocating resources (in order to protect from the market itself). I believe there could be alternate compensation mechanisms or hybrid means in altering contexts- not focused on the market logic. Exploring them on a continuum is a part of my research agenda] is to enable self–preservation for all, proportionally, to the extent necessary to realize basic needs of human flourishing so that one continues to have agency and is enabled to produce expression. It is not to form a market. It is to enable, it is to protect from the inherent market logic- the logic of compete for your basic needs first- and express later, irrespective of your social structural position (defined by involuntary social relations- that precede and our constitutive of our roles), with people in different positions.
Enablement (as against the idea of incentives) in its legal scope however has a clear limit, especially when the enablement of one conflicts with the enablement of another- given the resource involved i.e., speech, is inherently constitutive for self-determination.
Thus, if we have to continue with copyright law as a tool of enablement, there is an imperative need to rethink its scope and subsidiary elements and reconceptualize whether the right to exclude is the best tool for such enablement (for needs and not wants or individual preferences, but objectively defined social imperative needs) in all contexts for human flourishing.
[1] See, Jeanne L. Schroeder, Unnatural Rights: Hegel and Intellectual Property, 60 U. Miami L. Rev. 453 (2006) responding to Justin Hughes, The Philosophy of Intellectual Property, 77 GEO. L. J. 287 (1988).
[2] Oren Bracha, The History of Intellectual Property as The History of Capitalism, 71 Case W. Rsrv. L. Rev. 547, 574-575 (2020) [tracing the History of IP to the process of commodification which is an output of an ensemble of social relations that constitute capitalism and found specific phenomenological presence only during the 17th Century. The argument tries to denaturalize Intellectual Property law]
[3] See generally, Ellen Meiksins Wood, The Origin of Capitalism: A Longer View 106 (1999).
[4] What components constitute Human Flourishing can be widely debated, but the ones I specifically mean to refer to here are a combination of the spirit of the components endorsed in two texts–both of which specifically reject a notion of methodological individualism and endorse fulfillment of these basic components through the instrument of the law–one in context of real property law, and the other in the context of Copyright law. See Alexander, Gregory S., Ownership and Obligations: The Human Flourishing Theory of Property (2013) Cornell Law Faculty Publications. Paper 653, 2,5 [Prof. Alexander specifically emphasizes the following components of human flourishing–“But four such essential capabilities seem uncontroversial. These are life, understood to include certain subsidiary values such as health; freedom, understood as including the freedom to make deliberate choices among alternative life horizons [I would term this agency, to avoid the classical liberal expansionary tendency of the linguistic use of freedom]; practical reasoning; and sociability.”; See also, Syed and Bracha, supra note 1 at 256-257-“And for our purposes, it is possible to distill three elements of convergence (without claiming to capture the entire range nuances of the various alternative views). The first dimension, which incorporates the self-determination approach, emphasizes the importance of reflectively and deliberatively forming one’s own conception of valuable aspirations, projects, and preferences, and of having the effective means of their pursuit and realization. The second is “meaningful activity“—in which one’s physical or cognitive capacities are highly engaged and developed in a manner involving challenge and discipline, an engagement valuable both for its own sake and for the realization of various intrinsic and social rewards “internal” to the activity. The third is sociality, meaning involvement in relations and activities established communally through interaction affiliations and collaborations being both intrinsically valuable and partially constitutive of one’s sense of self.”.
[5] See, Talha Syed, Capital as a Social Relation (unpublished), draft on file. See also, Talha Syed, The Horizontal and Vertical in Capitalism, (unpublished).
PHIL IP AND POLICY 