The Purpose of Copyright Law
Posted by darklordofdebate on February 11, 2010
Recently several prominent blogs have been debating the fundamental purpose of copyright law, and Ars Technica ran an article on the exchange. The central question is whether copyright exists first and foremost to protect the rights of artists and creators to benefit from their intellectual “property,” or whether its primary purpose is to benefit the public by promoting the creation of culturally beneficial works. I believe both the Constitution and the history of American copyright law up until the 1990s or so clearly favors the latter view–that copyright exists to promote cultural enrichment and the interests of creators are inherently secondary. Below is an except from a paper I wrote for the Entertainment Law Initiative Essay Contest arguing in favor of this interpretation:
The constitutional purpose of copyright law is “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.” Fundamentally, copyright law exists to promote the production of creative works, and in doing so must balance two distinct interests—the right of society to have access to and benefit from creative works, and the need to allow creators to benefit financially from those works in order to motivate their production. This balance is achieved by granting creators a temporary monopoly over the use of their works, which gives them the incentive and financial means to produce them. However, creators’ rights are always considered secondary to the public benefit. As commentator Mark Nadel states, “Granting the copyright holder a virtual monopoly by prohibiting the unauthorized copying and sales of copyrighted works is a necessary evil for attracting the financial investments needed to promote the creation and distribution of these creative works.”
Contrary to the claims of many copyright holders, copyright is not based on the recognition of a fundamental right to control and benefit from intellectual property, but is rather an economic bargain to encourage socially beneficial creativity. Indeed, Congress has explicitly rejected the idea that copyright is based on natural rights, but has instead stated that its purpose is for the benefit of the public. Economically, creative works (also called “information goods”) such as music are considered “public goods,” which are characterized by non-rivalry (one use does not compete with another) and non-excludability (difficult or impossible to limit access to). These goods are typically difficult to profit from, and because they generally have fairly high production costs, there would be little incentive for people to produce them unless there is some guarantee that they can profit from their efforts.
Copyright laws protect producers’ ability to price information goods above their cost of production by artificially limiting the supply of those goods and restricting access to them, reintroducing rivalry and excludability to what would otherwise be public goods. These restrictions allow creators to profit from creative works, motivating the production of works that would not otherwise be created. While this involves some loss to society through decreased access to copyrighted works, the monopoly created by copyright is considered justified as long as it results in a net gain to society in the form of more information goods being produced. Conversely, when the exclusive rights granted by copyright do not result in a net benefit to society, they are not justified. Therefore, if a particular right granted by copyright law does not produce a net benefit to society, it should be removed.
 U.S. Const. art. I, § 8.
 Mark S. Nadel, How Current Copyright Law Discourages Creative Output: The Overlooked Impact of Marketing, 19 Berkeley Tech. L.J. 785, 787 (2004).
 See H.R. Rep. No. 60-2222, at 7 (1909) (“The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings . . . but upon the ground that the welfare of the public will be served. . . . Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given. . . .”).
 David Lindsay, Centre for Copyright Studies, The Law and Economics of Copyright, Contract and Mass Market Licenses 23 (2002), http://www.copyright.com.au/reports%20&%20papers/IssuesPaper_Lindsay.pdf.
 Id. at 24 (“To the extent that an information producer is unable to recover the costs of production, incentives for the production of information goods, such as copyright material, are undermined.”).
 Nadel, supra note 4, at 787.
 See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989) (“The Patent Clause itself reflects a balance between the need to encourage innovation and the avoidance of monopolies which stifle competition without any concomitant advance in the ‘Progress of Science and useful Arts.’ ”).