Philosophy of copyright
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The philosophy of copyright might be said to include several philosophical issues which are fundamentally linked to copyright policy, and other jurisprudential problems that arise in legal systems' interpretation and application of copyright law.
Probably the most profound and widely debated philosophical issue amongst scholars of copyright law, is its purpose. Some take the approach of looking for coherent justifications of established copyright systems, while others start with general ethical theories, such as utilitarianism and try to analyse policy through that lense. Another approach denies the meaningfulness of any ethical justification for existing copyright law, viewing it simply as a result (and perhaps an undesirable result) of political processes.
Another widely debated issue is the relationship between copyrights and other forms of "intellectual property", and material property. Most scholars of copyright agree that it can be called a kind of property, because it involves the exclusion of others from something. But there is disagreement about the extent to which that fact should allow the transportation of other beliefs and intuitions about material possessions.
There are many other philosophical questions which arise in the jurisprudence of copyright. They include such problems as determining when one work is "derived" from another, or deciding when information has been placed in a "tangible" or "material" form.
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[edit] Justifications of Copyright
Legal scholars often approach copyright in search of a coherent ethical justification for its existence and character. This approach may seem to be backwards -- it might make more sense to start with an objective and then examine the law against it -- but it is widely practiced. Thus, the normative or ethical theories that might naively be regarded as tests for copyright law to pass are often called `justifications' of it.
[edit] Natural rights
Natural rights are linked to the logic of property. John Locke is often cited as an authority, although it is not clear that Locke actually viewed copyright as a natural right.
Personality rights are the basis of German copyright law. This position regards copyrightable works to be extensions of the author's personality. The author is given certain powers to control those works on account of his or her connection to them.
[edit] Consequentialist theories
Consequentialist theories of copyright hold that we should have the laws that will produce the `best' results for society. The most common consequentialist position is utilitarianism, which defines the `best' situations to be those in which people are in total as happy or fulfilled as possible.
A related class of theories is called instrumentalism; it holds that copyright law must exist for clear, coherent and necessary purposes, without being so strict as to require that it maximise some kind of `goodness' in its outcome.
[edit] Consequentialism in the United States
Consequentialism or instrumentalism is, at least in theory, the legal foundation of copyright law in the United States. Article One of the United States Constitution authorizes Congress to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries".
Many authors thought that this wording would actually require U.S. copyright laws to serve the purpose of `promoting the progress of science and useful arts'. But with the Supreme Court's ruling in Eldred v. Ashcroft, it became clear that such a consequentialist foundation need not have many practical consequences.
[edit] See also
[edit] References
- William W. Fisher, Theories of Intellectual Property, in S. Munzer (ed), New Essays in the Legal and Political Theory of Property, Cambridge University Press (2000)
- Peter Drahos, A Philosophy of Intellectual Property, Dartmouth Publishing Co. (1996)
- Christian G. Stallberg, Urheberrecht und moralische Rechtfertigung [Copyright and Moral Justification], Duncker & Humblot (2006)
