Justifications for UK Copyright Law

Justifications for UK Copyright Law

1. Utilitarianism

   • Providing incentives…’to promote the progress of science and the useful arts’ (requires that intellectual labourers be granted property rights in those works)
   • [IPRs are capable of] impeding progress unnecessarily even if its general effect is favourable on balance
     • Issues: (i) no empirical evidence that an absence of IPRs leads to no creation; (ii) IPRs restrict use and dissemination, there ought to be laws calibrated in a manner which provides optimal amount of protection; (iii) there may be alternatives which no do restrict use and availability of works

2. Economic

   • Beneficiary of the copyright system is the community as a whole, which demands the production and access to, as many creative works as possible
     • Has both a ‘static’ and ‘dynamic’ element — ‘static’ = owner has positive benefit as a result of ownership of property right, ‘dynamic’ = acts as an incentive to invest in creating work
       • There will be incentive to produce goods because their selling price will allow a producer to recoup both the costs of production and the benefit of the goods to be purchased. But creative works are said to be ‘public goods’ in that it is difficult to exclude non-purchasers from their enjoyment
   • Issues: (i) there is much which copyright protects that would be produced and disseminated even without the incentive effects of the copyright regime, and (ii) it is difficult to structure copyright such that the monopoly losses associated with the regime are no greater than those required to ensure the protection and dissemination of a given category of work, especially given the wide range of subject matter that copyright protects

3. Desert

   • A creator might deserve control over the use of the work as a reward for her efforts in producing it...A creator might deserve control over the use of the work as a reward for the contribution that it makes to her culture
   • Issues: (i) no direct correlation between a creator’s effort/contribution and the works which copyright might be expected to protect; (ii) even if the creator of a work can establish her desert there may be good reason for not recognising her claim to control the use of the work. she may already have been rewarded in other ways

4. Personal autonomy

   • Valuing personal autonomy must involve granting an individual at least some control over those things with which she is most closely associated: to allow her to carve out an area of individual dominion
   • Issues: (i) none of the usual arguments from personal autonomy can establish a nexus between the creator and her work such that recognition of her right to control the work is essential to recognition of her personal autonomy; (ii) it necessary to demonstrate that the impact on the creator’s personal autonomy of refusing her control…would outweigh the impact on the would-be user’s autonomy of granting the creator control.

5. Natural rights (Labour)

   • IP is the intellectual labour of the author, IPRs act to reward that work rather than to encourage it
   • Issues: (i) is the total value of work attributable to labour?; (ii) why does labour entitle someone to ownership?; (iii) seen as ‘an imprecise tool’ for measuring boundaries of IP

6. Unjust enrichment

   • ‘the unauthorised user of a work receives a benefit from its use and thereby ‘reaps where she has not sown’ behaviour assumed to be morally reprehensible
     • We all [do it]…and regard ourselves as justified in doing so,…of those upon whose efforts we build…subsequent creators will imitate, adapt or expand that style or technique
       • To condemn reaping without sowing would be to condemn all imitation and to stifle the development of artistic traditions
   • Intuitively appealing but lacks rigour, does nothing to establish why a creator as a claim

7. Personality

   • Control over the work is essential to secure the creator’s control over her own personality
     • Spencer = artistic work has peculiarly personal nature
   • Issues: (i) it is estimable just how many works constitute, or are intended to constitute, an embodiment of the creator’s personality; (ii) even assuming personality to mean something as discernible as self presentation, it is unclear precisely how much control over her self-presentation a creator ought to be afforded; (iii) authorship not a solitary activity