Is
Copyright Ethical?
An Examination of the Theories, Laws and Practices Regarding
the Private Ownership of Intellectual Work in the United
States
by Shelly Warwick
http://www.bc.edu/
I. Introduction
The
Constitution of the United States empowers Congress to secure
for authors and inventors the exclusive rights to their
writings and discoveries for a limited time in order to
promote the progress of science and the useful arts (Article
1, §8). In revising the Copyright Act in 1909 Congress stated
that the rights of copyright holders were solely created by
government grant and had no other basis (H.R. REP. No. 2222).
It would seem then that copyright law was created by the
government as an instrument of policy. Policy usually is
based on a choice of preferred outcomes, and that choice may
be based on considerations other than the moral or the
ethical. Given then that copyright law expresses policy why
does the software industry decry the lack of ethics of
individuals and nations who pirate computer programs, and why
do database producers cry unfair when the public domain
material in their databases is copied by others?
This paper examines the relationship between intellectual
property rights and ethics, focusing for the most part on
copyright. The focus is on two key questions : 1) what is the
relationship between ethics and copyright law and practice in
the United States; and, 2) is the concept of private
ownership of intellectual property inherently ethical? These
questions are important because access to an overwhelming
number of the elements of daily life is now controlled by
intellectual property law. Is non-conformance with these laws
a calculated risk against being caught, equivalent to parking
at a meter beyond the specified time period, or is it a
matter of ethics?
To provide a basis for this examination some varying
constructions of rights, property and intellectual property
will be presented along with a brief history of copyright in
the United States. The copyright legislation passed by the
105 th Congress will be discussed as well as some current
international aspects of intellectual property. Then, with
both theory and practice at hand, we will proceed to the
ethical examination. Sadly we will be unable to reach a
conclusion on whether all aspects of intellectual property
are unethical, but will have found that copyright in the
United States is an economic regime which pays homage to
ethics only when it wishes to invoke the a higher ground than
economic damages for reasons to obey copyright law.
II. What Are Rights and How Do They Arise?
An
excellent summary of various approaches to rights is provided
by Waldron (1984) who elaborates rights theories as being of
two kinds, those based on some perceived intrinsic quality
(natural rights theories) or on some value that a society
wishes to achieve (utilitarian theories). He argues that
rights cannot be discussed without considering the topic of
political morality, which may be based on rights, duty or
goals. While Waldron thinks that rights can exist outside of
positive law, he acknowledges that much of the debate on the
basis of rights has incurred within that framework. He points
to Bentham as the key liberal theorist of natural rights, who
derived all rights from the right of subsistence and viewed
rights as the child of law through the marketplace. Most
modern jurists recognize that the legal system includes rules
that allow individuals to harm others without redress, and
therefore reject the meta-theory of liberalism, accepting
that “ . . . to the extent others have
legal liberties, one has no security” (Singer, 1969 p. 985).
Dworkin views rights as trumps “ . . over some background
justification for political decisions that states a goal for
the community as a whole" (1984, p. 164). He goes on to state
that the concept of rights is needed in a political theory
only when some decision that injures some people finds
prima-facie support in the claim that it will make the
community as a whole better off. Dworkin view rights as the
legal means for achieving the values of a society.
Perhaps one of the most influential refutation of liberalism
and clear discussion of rights, has been provided by Wesley
Hohfeld (Hohfeld, 1923) who explored the basic contractions
within legal and political theory and caused jurists to
realize that all legal decisions were not based on an
inherent logic of rights, but on politics, morality and the
competing goals of liberty and security. In short the modern
view of rights is that they are created by law and stem from
no “natural” source. Rawls’ (1972) theory of justice as
fairness is in accord with this thinking, but adds the
concept of fairness and the priority of liberty to the
fashioning of positive law. While many modern thinkers have
rejected the assertion of liberal theorists, and of Locke,
Lock’s position that certain rights are natural (exist prior
to the state and whether or not the state recognizes them)
still has a profound resonance in most discussions of rights,
and had a major influence on the founding of the United
States. The Declaration of Independence is a clear statement
of the liberal philosophy, asserting that rights stem not
from a sovereign or state, but from a creator (which would
make them natural and moral), and that they are inalienable
(unable to be given away or transferred) which means that the
state can not subsume these rights.
III.
Property Rights
The
traditional legal basis for property is well defined and
discussed by Cohen (1935) who defines property rights as the
relationship between individuals in reference to things. He
asserts that the owners of all revenue producing property are
granted the power to tax the future of social product. This
power, along with the power to command the service of a large
number of individuals who are not economically independent is
viewed as the basis for political sovereignty. Four
approaches to the development of private property are
presented: 1) Occupation, where rights develop based on
discovery or tenancy; 2) Labor, where rights accrue through
use or work; 3) Personality, or the need for a sphere
for an individual to exercise their right to act as a free
personality; and 4) Economic, which views private
property as the means to maximize productivity. However,
Cohen point out that private ownership often encourages the
sacrifice of long-term social interests for immediate
individual profit.
In discussing occupancy, Cohen observes that no matter how
property was obtained, the longer one holds it the stronger
the expectation to continue to do so, and that the law finds
value in protecting legitimate expectations. In terms of the
self-evident nature of property through labor, Cohen comments
that economic goods are never the result of one person’s work
and that consideration must be given even to those that
“guarded the peace while work was being done.” Cohen gives
little value to those who derive the right of property from
the right of an individual to act as a free personality and
not depend on others for their material goods. Cohen
characterizes the economic basis of private property as a
mean to maximize productivity, but comments that this often
results in an emphasize on short-term gains and a sacrifice
of social interests to profits, and perhaps less productivity
in the long-term. In short, there appears to be a common
sense basis for all approaches to property, and at the same
time a common sense limitation. He concludes “The issue
before thoughtful people is therefore not the maintenance or
abolition of private property, but the determination of the
precise lines along which private enterprise must be given
free scope and where it must be restricted in the interests
of the common good” (Cohen, 1985, p. 304).
Another detailed discussion of property and rights is
presented by (Waldron, 1988) who poses two questions 1) what
individual interests are served by the existence of private
property? and 2) are any of these interests so important from
a moral point of that they justify a government duty to
protect them?. Waldron examines utilitarian arguments for
private property, which are based on the concept that society
will benefit more if material resources are controlled by
individuals than if they were controlled by the state or the
community as a whole. He points two defects in this approach,
it treats all human desires and interests as equal, even if
they cause pain and suffering to others, and that they care
little about how the sum of happiness is achieved, and have
no concern with justice or equality. “The owner of a resource
is simply the individual whose determination as to the use of
the resource is taken as final in a system of this kind.”
(Waldron, 1988, p. 35).
A major proponent of the utilitarian nature of property
rights is Demsetz who define a property owner as one who “. .
.posses the consent of fellowmen to allow him to act in
particular ways” (Demsetz, 1967, p. 347). Properrty rights
are defined as rights that specify how persons may be
benefited and harmed, and who must pay to modify the actions
taken by various persons and are put forth as a means of
achieving a greater internalization of externalities, or a
means of bringing new factors into the equation and as they
arise along with the emergence of new benefits or harmful
effects. Coase, whose thinking is at the core of much of
Demsezt’s theories, views rights as a factor of production,
the cost of which must be factored into any costing process
and states that while it is desirable that “the only actions
performed were those in which what was gained was worth more
than what was lost” and that the choice of social
arrangement, and individual decisions may lead to changes
which improve some decisions but worsen others (Coase, 1960,
p. 369)
From these various points of view on the origin and purpose
of private property and the control of scare resources, it
can be seen that the state has the role of adopting an
approach for rulemaking which can be to: 1) support the
expectations of those who have property; 2) follow an
over-riding principle; or 3) strive to achieve a desired end
(policy). While it would be convenient if each state followed
a single course, we’ll find as we examine the history of
copyright in the United States, that the government tends to
utilize all three approaches when making rules, including
those concerning intellectual property and copyright.
III.
Theories of Intellectual Property and Copyright
Intellectual
property is a term that has recently come into extensive use,
and is often used without definition (Brown and Rushing,
1990; Miller, 1979), or defined as that which is covered by
patent, copyright or trademarks (Rozek, 1990). Abbott (1990,
p. 312) states that intellectual property rights are ". . .
the legally protected property interests individuals possess
in the fruits of their intellectual endeavors" while Sherwood
(1990) views intellectual property as a compound of the
results of private activity (ideas, inventions and creative
expression) and the public willingness to bestow the status
of property on these results.
Most scholars accept that copyright is a bundle of property
rights that produce/protect a limited monopoly (Ringer and
Gitlin., 1965). The basis for these rights, however, is hotly
debated, as is the purpose of the rights, and what protection
should (or should not) be provided intellectual property in
the future. Two views dominant copyright theory. The first
approach views copyright as a “natural” right either based on
labor, echoing Locke, or personality, echoing Hegel. The
second approach treats copyright as a state policy to achieve
set goals (such as an increased creativity, progress in the
useful arts, an orderly market for products of mind, a means
for expanding foreign trade, or the like). The first
approach, the natural right of an author to the fruits of his
or her labor have been asserted since the dawn of copyright
in England (Birrell, 1899; Lowndes, 1840; Warburton, 1974)
and is still asserted by those who feel labor should be a key
element in determining the control of works (Hicks, 1987;
Ginsburg, 1990; Goldstein, 1992). Equally voracious are those
who feel copyright is to promote the useful arts or public
access to information (Litman, 1992, Patterson and Lindberg,
1991; Samuelson, 1997) and those who see it as a means to
insure an orderly market for works of the mind (Demsetz,
1967; (Gordon, 1990; Landes and Posner., 1989). It might be
noted here that almost no one feels that copyright as
currently formulated in the United States is adequate to
whatever role they assign it. From those proclaims that
information wants to be free and that copyright will die a
natural death due to electronic communication (Barlow, 1994;
Kost, 1987; Schlachter, 1996), to strong protectionists,
(Ginsburg, 1990; Goldstein, 1992}, copyright law is
contradictory and needs focus.
Branscomb (1984)identifies a basic conflict in U.S. copyright
law in that it addresses the ideal of shared resources while
practicing the principles of management of scarcity through
the choices of the marketplace, while Patterson (1984)
castigates it for lack of a fundamental principle. Though
some theorists like Gordon (Gordon, 1989) believe copyright
is consistent with other laws of property in its provision
and protection of rights, others like Hettinger (1993)
question every assumption about copyright, citing a reward
for labor as a choice of social policy. Hettinger, refers to
copyrights, patents, and trade secrets as intellectual
objects and points to the key difference between intellectual
objects and real objects, which is that intellectual objects
do not dissipate with use and can be used by more than one
person at the same time. Hettinger also sees a contradiction
in a political system that places value on freedom of
expression and then has intellectual property laws which
makes ideas and expression private.
While he acknowledges that the concept that a person is
entitled to fruit of her labor is a most powerful idea, he
states that most intellectual labor is built on the labor of
others which would make it difficult to assign rights to a
specific individual. In recapping Locke’s theory of
ownership, which is based upon an individual’s ownership of
his or her own body and the resultant ownership of what the
body makes, Hettinger points to the need to distinguish
between what is attributable to the object and to the body.
Intellectual products, states Hettinger, are fundamentally
social products and there is no reason for last contributor
to get all the rewards. Hettinger puts forth the concept that
an individual is entitled to rewards for labor is a myth, and
that rewarding labor may be a social policy, but is not a
moral right. Hettinger also states that there is a gap
between saying that one has the right to use the fruits of
his or her labor and the claim that one should receive
whatever the market will bear. He argues that if property
rights in the thing created were always the reward for labor
parents would deserve property rights in their children even
when the children achieve adulthood. Hettinger also refutes
the utilitarian argument that intellectual property laws are
necessary for competition, and claims that it slows down the
diffusion of ideas in the name of promoting diffusion. He
further questions whether the current intellectual property
laws have actually increased either the amount of
intellectual property available or its use. Hettinger (p. 35)
raises the central ethical question as to “why one person
should have the exclusive right to possess and use something
which all people could possess and use concurrently?”
Chief among those arguing the economic basis of copyright are
Landes and Posner who view copyright law as a mean of
promoting efficient allocation of resources and see “striking
the correct balance between access and incentives is the
central problem of copyright law” (Landes and Posner, 1989,
p. 326). They believe too much protection will raise the cost
of creation, while too little will provide little incentive.
They state that the “optional amount of copyright protection
is greater for classes of work that are more valuable
socially.” A refutation of Landes and Posner is offered by
Palmer (1990) who bases much of his arguments on the economic
theories of Coase and Demsetz and states, in short, that the
marketplace and individual arrangements, such as licenses and
trade agreements, would allow authors to profit from their
intellectual property without the need for copyright. Palmer
(1990, p. 279) takes the position often adopted by advocates
of expanded fair use that “The central element in the
spontaneous emergence of property rights is scarcity... but
that copyright depends not on scarcity but on law.”
Another approach to copyright has been to protect an authors
moral rights, or rights of paternity or attribution (the
rights of the author to be identified as the creator of the
work) and rights of integrity (which prevent a work from
being altered without the author’s permission) (Jacobs, 1993;
Nimmer, 1995). The crucial difference in these approaches is
that property or economic rights can be sold or assigned
while moral rights remain with the author even if the
economic rights are conveyed to others. The United States and
England has long been associated with economic rights while
France and the Scandinavian countries with moral rights. Once
it understood that copyright in the United States pertains
only to economic rights its nature as a utilitarian policy
and not an ethical construct become clear.
V.
History of Copyright in the United States
The
legal basis for copyright in the United States is Article 1,
Section 8 of the Constitution which empowers Congress “to
promote the progress of science and the useful arts, by
securing for limited times to authors and inventors the
exclusive right to their respective writings and
discoveries.” The model for first Copyright Act, that of
1790, was the English Statue of Anne which is generally
recognized as intended to regulate trade rather than
recognize author’s rights or promote learning (Patterson,
1968; Rose, 1993). Copyright in England and the rest of
Europe was essentially based on the assertion that the
sovereign had the rights to all things within his domain and
the rights of others were solely based on the pleasure of the
crown (Rose, 1993). The Constitution, by reserving for
citizens all rights not explicitly granted to Congress or the
states raised the people to the role of sovereign. The
limited nature of the rights conferred by The 1790 Act, which
granted authors the rights to print, reprint, publish and
vend their writings for 14 years, makes more sense when it is
understood that the rights not granted to authors are
reserved to the people as sovereign. Transformative or
productive uses of the protected works, such as translations,
abridgements and derivations, were not prohibited as these
were not considered copies, but uses of the work (Patterson,
1968). Copyright protection was only granted to citizens of
the United States.
United States copyright law has been consistently revised to
embrace new media and to provide a wider range of rights to
copyrightholders, usually in reaction to copying not
prohibited the current law but deemed unjust or unethical by
the Courts or Congress. For example, the right to create
derivative works, including translations, was not granted
authors until after Harriet Beecher Stowe had failed in an
action against a German translator of Uncle Tom’s Cabin (
Stowe v. Thomas). Protection to works created by citizens of
nations was granted in 1891, and then with the provision that
the work be printed in the United States. The United States
recognized, if a bit late, the need for reciprocal
international copyright and became a founding member of the
Universal Copyright Convention (UCC) in 1951, then a
signatory to the Berne Convention in 1989. The growing
importance of copyright within international trade and the
tendency to try to force intellectual products into framework
constructed for consumable goods is exhibited by the Trade
Related Aspects of Intellectual Property (TRIPs) agreement of
the General Agreement of Tariffs and Trade which the United
States adopted in 1994.
The last major revision of copyright law took place in 1976
after over 20 years of studies and debate (Henry, 1976). The
intent of Congress was to create a law so inclusive that as
new media arose the works created in them would automatically
be eligible for copyright protection without the necessity of
revising copyright law. At the time this law was crafted the
photocopier was the major new technology and computers were
things that took up huge spaces and were only owned by large
organizations.
Current copyright law, as per the Copyright Act of 1976 as
amended, protects all “original works of authorship fixed in
a tangible medium of expression.” Copyright holders have the
exclusive right to reproduce, distribute, sell or lease
works, and to prepare derivative works, and to publicly
perform literary, musical, dramatic and choreographic works,
pantomimes, motions pictures and other audio visual works, as
well as to display these and pictorial, graphic or sculptural
works, including individual images of a motion picture or
other audiovisual work (U.S.C. 17 §106). In 1980 software was
deemed a type of copyrightable work, and in 1984 the designs
for semiconductors (computer chips) were given sui generis
protection.
In 1997 and 1998 the 105 th Congress passed three major
copyright laws, the No Electronic Theft (NET) Act, the Sonny
Bono Term Extension Act (SBCTEA) and the Digital Millennium
Copyright Act (DMCA). The NET Act extended the concept of
financial gain to receipt of anything of value and made
willful infringement of works having a total value of more
than $1,000 a criminal offense, even if the infringer did not
profit. Prior to this act, copyright infringement was a civil
matter. The Sonny Bono Term Extension Act extended the term
of copyright to match that of the European Union, extending
the term of copyright by 20 years, so that the basic term of
copyright is now the life of the author plus 70 years. This
act was retroactive, extending the term of works already
created. Both The NET and SBCTEA clearly indicate that
copyright in the United States is becoming more a tool for
securing property interests than a mode of encouraging new
works, especially since the latter provides an additional
term of protection for works already created. The DMCA was
passed to implement the1996 Word Intellectual Property
treaties, making it a crime to circumvent technological
protections put in place by the copyright owner. This
provision takes effect two years after the enactment of the
DMCA, during which period the Librarian of Congress is to
conduct a rulemaking proceeding to determine appropriate
exceptions to the prohibition (17 U.S.C. §1201).
There is no explicit exemption for fair use, and, therefore
someone who disabled protection to access the information
would be committing a criminal act even if the use of the
information would be fair. The impact of this provision can
best be appreciated if one remembers that until the No
Electronic Theft Act of 1997 infringement of copyright was a
civil not criminal matter. The worst penalty an infringer
could expect would be to be told to stop making copies and to
pay a fine. Under the new law, a person who evades a
technological protection could go to jail. This law was very
strongly backed by content providers, including print
publishers. In a similar vein, this law makes it a criminal
act to manufacturer or import any device that has as its main
purpose the circumvention of technological protection. The
DMCA also provides penalties for changing or deleting
Copyright Management Information (CMI) when providing a copy
of a work, provides some protection to internet service
providers against copyright liability, makes some technical
corrections to copyright law and mandates the Librarian of
Congress to begin a rule making process for the use of
copyright protected works in distance learning environments.
These most recent copyright laws can perhaps best be
understood in an international framework. The European Union,
which includes Britain, recently adopted an Intellectual
Property Directive that established the life of the author
plus 70 years as the basic period of protection and in
December of 1996 two World Intellectual Property Organization
(WIPO) treaties were adopted in Geneva which called for,
among other things, the protection of technological
safeguards used by copyrightholders (WIPO, 1996). The push
for this, and even more stringent measures, was spearheaded
by the United States (Samuelson, 1997).
What
Copyright Doesn’t Cover
Copyright
protection is not provided to ideas, procedures, processes,
systems, method of operation, concept, principle, discovery,
short phrases, fact or works created by the United States
government. There are a number of exceptions to the rights of
copyright holders, most of which are applicable to a limited
class of actors, such as libraries, educational institutions,
cable television systems and radio stations. Two exemptions
are available to the general public, the right of first sale
and fair use. The right of first sale allows a person who has
purchased a copy of a work protected by copyright to lend,
sell or otherwise transfer that copy of the work to someone
else. The fair use exemption is more complex in that it
allows copying for purposes such as criticism, comment, news
reporting, teaching, scholarship or research, with whether
the use is fair to be determined based on: (1) The purpose
and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work, (3) the amount and
substantiality of the portion used in relation to the
copyrighted work as a whole; and (4) the effect of the use
upon the potential market for or value of the copyrighted
work (U.S.C. 17 §107). While fair use is generally perceived
as establishing rights of use, or as a limitation on the
rights of a copyright holder, Patterson (1992) contends that
it has actually broaden the rights of the copyright holder
and that prior to the 1909 Act fair use did not apply to
consumers because fair use was a defense for infringement and
infringement only applied to those who made commercial use of
the work, not individual use.
VI.
Is Copyright Ethical?
The
ethics of copyright can be approached in two ways: (1) If, as
Hettinger suggests, every creator stands on the shoulders of
giants what is the essential morality in allowing the last
contributor to reap the full reward or to have the right to
prevent others from building on her contribution; and (2) If,
as postulated by Locke, an individual is entitled to what he
or she creates, what are the ethics of limiting a creators
rights in regards to his or her creation? Theoretically
copyright law in the United States takes the first view,
stating that authors have no natural right in their creation
but only the rights that the state has conferred by reason of
policy to encourage the creation of new works (H.R. REP. No.
2222). This approach assumes that the content of products of
mind (not the objects in which they are embedded) belong to
society as a whole, but that society would benefit more if
more such products were available, and that in order to
encourage production the creator of such products should be
given rights that will allow him or her to reap some economic
benefits from the creation. As Branscomb (1984) observed this
is encouraging access by legislating scarcity.
Earlier United States copyright law was better aligned with
the encouragement theory and the ethical position that
creative works belonged to society as a whole. Only the exact
copying of a work was prohibited, not new works based on a
previous work. Subsequent authors were free to adapt novels
to the stage, abridge scholarly works for the masses, and
translate works into other languages without paying a license
fee to the creator or to whom ever the creator had
transferred his or her copyright. However as copyright law
has expanded to grant creators more rights the law has all
but abandoned the concept of allowing, let alone encouraging,
transformative or productive use. Copyright no longer has a
consistent theory, let alone an ethical position. It has
become what is often called an equitable rule of reason,
which attempts to balance the rights of authors with the
rights of users. It is often not clear whether this balance
is to be obtained by granting rights via law or by
recognizing the intrinsic rights of each. However, if
copyright is indeed only a matter of law there should be no
rights other than those granted by the law. What both
creators and users then have are expectations, but, as Cohen
(1985) observed, the law finds value in protecting legitimate
expectations.
But whose expectations are legitimate? The creator who
envisions riches for building a better mouse-trap or the
users who expect to be able to use the designs of that mouse
trap to build an even better one or learn about how mice can
be trapped? If both expectations are legitimate we have a
dilemma, but is it an ethical dilemma or a policy dilemma?
Copyright law avoids taking an ethical position or even
deciding which group holds the highest trump, but endeavors
to effect a compromise between the expectations of creators
and users by creating a period where the expectations of the
creators are recognized by law (the period of copyright
protection) followed by a period where the expectations of
users are recognized (when a work enters the public domain.).
This perhaps was an equitable rule of reason when the term of
copyright was 14 years with a possible renewal of another 14
years (as provided in the Copyright Act of 1790) but is it as
equitable now that copyright exists for the life of the
author plus 70 years? Is it even consistent with
encouragement theory to extend the term of protection for
works already created?
One could argue that the continual extension of the term of
copyright protection and the expansion of authors’ rights
indicates a shift of ethical perceptions in the United States
and that the “right” of creators to benefit from their work
is now perceived as more legitimate. Or one could argue that
copyright has lost whatever mooring it once had to either
ethics or theory and is a law unduly influenced by those who
would benefit most from stronger protection. For example,
many of those who argued for an expanded term of copyright
often spoke of literary work as an author’s legacy to their
family, (echoing the arguments of the Stationer’s Company who
pointed to the widows and orphans of authors as they lobbied
for perpetual copyright (Rose, 1993). What drove term
expansion, however, were the interests of corporate
copyrightholders such as Walt Disney who feared the entry of
Mickey Mouse into the public domain (Litman, 1994).
Given the strong connection between a creator and her work
(especially in literary genre) it is difficult to assert that
granting no rights to the creator is ethical. Likewise given
the fact that almost all works, including those that are
literary, owe a debt to the sum of works that have gone
before, it is difficult to assert that granting exclusive
perpetual rights in a work to a creator is ethical. However,
the arguments for personal ownership and control of
intellectual works are appealing, since they accords with
concept of ownership as awarded to physical works, since
original works can satisfy all four approaches to private
property: occupancy, labor, personality and a means to an
economic end. However intellectual works are different from
physical objects. And one of the problems of the current
copyright system is that it was created at a time when
intellectual property was easily fixed in real objects so it
was not necessary to confront the difference between the
container and the content. This is no longer the case with
the advent of technologies that allow intellectual works to
be easily copied and shifted from media to media. Not only is
the enforcement of copyright more difficult but the
non-consumable and non-exclusive nature of intellectual
property becomes evident, along with its low marginal cost of
reproduction (Hettinger, 1993). Intellectual property laws
tend to stuff creative works back into containers, creating
an artificial scarcity (Branscomb, 1984)
Copyright, in as much as it attempts to balance the interests
of creators and society could be considered based on ethics.
However, while such ethical considerations might have been
present in the minds of those who crafted copyright law they
were never stated either in the Constitution or in the law.
This discussion becomes more complex when applied to factual
works., Copyright has never protected facts or ideas. It only
protects expression. Therefore a scholar who has labored for
years to research a subject such as Lincoln’s death may find
his work utilized without credit and have no recourse under
law ( Eisenschiml v. Fawcett Pub ). As the judge observed
“Whatever we may think of the ethics of Millard [the second
author] in utilizing various portions of plaintiff's [first
author] works with only a scant credit reference, or the
ethics of the defendant [the publisher] in publishing the
article after first eliminating the credit reference, we
conclude, in view of the findings we must hold there was not
a sufficient copying to amount to an infringement.” In short,
plagiarism may be unethical but it is not illegal if it can
be justified by fair use, which does not specify that the
source of work used by must be cited.
If copyright does not protect facts it also does not protect
labor. While many circuit courts incorrectly interpreted the
1909 Copyright Act as protecting compilations of information
based on labor this was clearly found unconstitutional by the
Supreme Court in Feist v. Rural Telephone , which ruled that
unoriginal arrangements of facts had no more protection than
a single fact. In light of this decision there has been a
major effort by information compilers and database developers
to have a law passed in the United States that would protect
compilations of fact based on labor and investment. The
current proposal (H.R. 354, The Collections of Information
Privacy Act) would prohibit even legitimate purchasers and
subscribers of compilations from using substantial amounts of
data in the resource. It would also allow renewal of the
protection as long as the compilation received new inputs of
either labor or investment. This protection mimics protection
already granted in the European Union by the EU Database
Directive (European Parliament 1996). This new legislation
would not protect the labor of original researchers who
discover and interpret facts, since works like articles and
monographs would still be protected by copyright as it is now
constituted. What would be protected is the labor and
investment of those who compiled facts, often from the
articles of original researches. While it is tempting to
discuss at length the effect such legislation would have on
scholarly research and the cost of education, we will merely
state that we’ve done this elsewhere (Warwick 1998) and focus
here on the ethical question. Where is the ethics of stating
that intellectual creations are the sum of the labor of many
and belongs to society, then having a policy of encouraging
creativity by offering creators of original work protection
only for their expression, while providing additional
protections to those who produce unoriginal works clearly
based on the work of others? If more socially valuable works
should be given more protection (Landes and Posner, 1989)
then why should a creator of a phone directory receive more
protection than the creator of a prize-winning science
article? How is social value being measured? While some may
argue that database protection is lesser protection than
copyright protection, there is nothing in the proposed United
States legislation or the EU Directive that prohibits works
from being protected under both regimes, in fact this is
anticipated.
As stated before, the United States has traditionally
protected the economic rights of creators, not their moral
rights. However in 1990 authors of visual works were granted
the rights of attribution and integrity. These rights were
designated as being separate from copyright and for a term
that expired with the death of the creator. However, unlike
moral rights in France, they can be waived. It is difficult
from an ethical viewpoint it is difficult to understand how
if visual artists have moral rights and not creators in other
media, such as text or music? Is it perhaps the fact that an
original painting or sculpture are usually unique — one of a
kind items that lose value (artist and financial) in
reproduction so that the original needs to be preserved s
created? If so, then an underlying value of copyright law
would be that works which retain value through reproduction
should receive less protection. In that case factual works
should receive the least amount of production.
Once moral rights are recognized as distinct from economic
rights a possible way out of the copyright maze presents
itself. One could declare that society owns the economic
rights of creative works while the author retains the moral
rights. Then society, in the form of the United States
government would be taking a consistent ethical position even
if it choose to craft a policy of providing an inducement to
create more works by providing economic incentives in the
form of economic copyright protection. Though if one was
going to analyze copyright as an inducement to create more
works it would be sensible to find out how many more works,
if any, were created only because a longer period of
copyright protection was available. Surely there are other,
and perhaps more effective, means to induce the protection of
creative works. However there is a constitutional problem.
While Congress is empowered to “promote the progress of
science and the useful arts” this empowerment requires doing
so by “securing for limited times to authors and inventors
the exclusive right to their respective writings and
discoveries.” Many claim this limits the ability of Congress
to provide other means of encouragement. However, the
Constitution does not state whether the exclusive rights are
moral or economic. Nor does it distinguish between the
economic rights of the creators and of those to whom the
rights have been transferred.
Copyright clearly illustrates Waldron’s (1988) contention
that the utilitarian arguments for private property are
defective in that they treat all interests as equal, even if
pain and suffering is caused to others. The interests of the
very few members of society who are authors and publishers
are weighed evenly with the interests of the vast body of
citizens who are not creators. The interests of a few
publisher who would not make an additional 5% profit unless
additional protections are provided is often weighted equally
with those of thousands of students who will not do as well
as their classmates because they would not be able to afford
access to information if additional protection raised the
cost of research. The issue of group rights to intellectual
property has also been raised in regard to the cultural
symbols and folklore of Native Americans and indigenous
peoples (Dougherty, 1998; Farley, 1997) and in biological
patents (Shiva, 1993, 1990; Ritchie, Dawkins and Vallianatos,
1996).
´The ethics of copyright have also been raised when the
rights granted by copyright have come in to conflict with
those of freedom of speech, freedom of the press and privacy.
For example Martin Luther King Jr.’s “I Have A Dream” speech
was ruled to be in the public domain ( Estate Of Martin
Luther King, Jr., Inc., v. CBS, Inc .) and the unlicensed use
of Zapurder’s copyright video of President John F. Kennedy’s
assassination permitted based on the public interest in the
topic ( Time Inc. v.. Bernard Geis Assoc. Inc ). Conversely
J..D. Salinger was found to have the right to limit the use
of his unpublished letter, and their use a scholarly
biography was found not to be fair, though Salinger had
donated those letters to a library for study ( Salinger v.
Random House, Inc .). This prompted an amendment to the
Copyright Act which expressly extended fair use to
unpublished works. Are these contortions and amendments of
copyright law an attempt to fine tune public policy or to
create an ethical law. Probably some of both.
An other area where the rights granted by United States
copyright law are raised to the area of ethics rather than
policy are in the international arena. The copying of
intellectual property in countries that have not declared
this illegal has been branded “piracy” and a great effort has
been made to export United States copyright law to the
People’s Republic of China, Taiwan and Latin America (Beam
1995; Lara, 1998; Slotkin, 1996; Yeh, 1996) even where the
tradition of copying is part of recognizing established
values (Alford, 1995). While it is undoubtedly true that
producers and distributors of intellectual property who are
citizens of the United States suffer economic harm though
loss of sales in those countries that do not stringently
protect or enforce intellectual property rights, one wonders
how that which is stated as a policy choice in the United
States can be raised to a level of ethics when applied to the
action of citizens of other countries. The moral and ethical
pose often adopted by the United States in the international
copyright arena is perhaps ironic, considering that for
almost half its existence the United States was a major
intellectual property pirate, printing literary and scholarly
works with little or no compensation to their British
creators. Indeed in the 1800s protecting the copyright of non
United States nationals was viewed by average citizen as an
undesirable policy and one that would drive up the price of
books (Putnam 1891a, 1891b; 1891c).
Ethics are often raised as well in regard to copying
software. The Software Publisher’s Association (SPA), which
merged with the Information Industry Association (IIA) in
January of 1999 to form the Software & Information
Industry Association (SIIA), offers a guide on Software Use
and the Law (SPA 1997) which states it is intended to provide
“a basic understanding of the issues involved in ethical
software use.” The same document declares that it is “wrong”
for a school to duplicate software. While copying software
except for backup or archival purposes is clearly illegal
does this automatically make such actions unethical? Unless
one considers all laws ethical, and that breaking any law to
be unethical, illegality and unethicality can not be
automatically equated. One also might question whether the
efforts by the SIIA and its predecessor organizations to have
Congress enact legislation that provides greater rights to
creators (and their assigns) than to users were prompted by
an ethical position or by a desire for greater profits.
VII.
Summary
United
States copyright law is theoretically based on policy created
within a framework that valued the interests of the people as
a whole over the interests of an individual creators. The
original framework is being slowly dismantled to give more
weight to the interests of individual creators. This shift in
policy is often defended based on the ethics of allowing a
creator control over her work. However, this ethical position
does not generally extend to moral rights. Moral rights, of
course, only benefit creators, not publishers or
distributors. This calls into question whether the extension
of rights is based on an ethical position or in reaction to
pressures exerted by those whose profits depend on the
protections granted by copyright. Copyright was created as
policy not an ethical construct, but many treat the law as if
it is, or should be, such a construct. Copyright law as
currently constituted does not appear to have a consistent
ethical basis nor to provide a consistent policy to promote
learning and the useful arts.
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