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Beebe Copyright Outline 2 - Spring 2003

Beebe Copyright Outline 2 - Spring 2003 - Copyright Spring...

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Copyright Spring 2003 1 head2right Core copyright industries in the U.S. make $535 billion/year. C OMPETING JUSTIFICATIONS FOR COPYRIGHT PROTECTION One is the natural rights justification: 1 Authors have a natural right to exploit the benefits of their work. Another is the Hegelian justification: the author’s personality is wrapped up in their work. The implication is that you can’t ever really alienate what you’ve made when your personality is so much a part of it. This is a very big idea in European copyright law, and has a lot to do with the protection of “moral rights” under U.S. copyright law. There is also the utilitarian justification: 2 in order to motivate people to create these works, we have to give them a property right in their creation. The idea is that people do not create out of selflessness; they need an incentive. The public good justification is slightly different; see Holmes’s concurrence in White-Smith . He said that because an author’s rights in their work can be violated 1,000 miles away without the author’s knowing anything about it we need statutory protection. Beebe read passage from Jefferson’s letter to MacPhereson in re ideas are like fire: they can spread throughout the world and their power is not lessened by the spreading . We need to protect for limited terms so that the ideas can spread. More technically, two characteristics of public good, as set forth in neo-economic thinking: 1) Non-rivalrous consumption . Information can be consumed by many people at once without lessening the value of that information. The problem is that some ideas do indeed become less valuable the more they are spread. Hot news is an example of where there is rivalrous consumption of information. 2) Non-excludable public good . The users of ideas cannot help but be benefited so we need them to pay for the benefits they receive. Examples: defense spending, lighthouses, etc. With the lighthouse, maybe 100 ships in the harbor benefit from it but only 40 have paid for it: the 60 free-riders cannot be excluded from the benefit . Ideas serving the public good are typically under–produced because there is not enough money in them. The theory behind non-excludable public good is that we have to encourage people to pay for the lighthouse, and, in turn, encourage people to come up with ideas that benefit the public. On a related note, consider movies that sort of self-destruct, where you can’t watch them 3 days later: the technology is designed to try to exclude what you just watched from your consciousness. 3 1 Sometimes called the Lockean justification –– Locke said that when you mix your blood with the soil you have a natural right to the fruits of your labor. 2 Sometimes referred to as the Benthamite justification, after J. Bentham.
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