Sensible Copyright Policy vs. The First & Fifth Amendment?
posted by Frank Pasquale
I’m at the IPSC at Depaul this week. I’m really enjoying the papers so far. I’ve got a few comments on Lydia Loren’s Aligning Incentives with Reality: Using Motivation for Creation to Shape the Scope of Copyright Protection, which I heard this morning.
Loren argues that there are many types of works that are now getting copyright protection that don’t necessarily need to be incentivized by it. For example, she doubts whether the Vatican needs copyright protection to be motivated to produce encyclicals, or emailers need such protection to induce their communications. She proposes “less robust, or ‘thin,’ copyright protection for those types of works that do not require the incentive of the copyright to be created and distributed.” She worries that unneeded protection may lead to overproduction of certain works–a concern I share. But her presentation led me to a few questions.
First, do we know that there is a direct relationship between copyrightability of a category of works and the quantity, dissemination, and quality of that category of works? Might we believe that a chain reaction of propertization actually impedes production? If we do, we might want more protection of overproduced works.
(My view is that copyrightability probably significantly affects industrial organization, but I have little idea of its overall effect on quantity, dissemination, and quality, and even if the last variable may be quantified. . . though Tyler Cowen’s work has at started to explore its tractability.)
But for now, let’s assume copyrightability does increase quantity. It seems to me that as soon as you try to decide what the “true level of incentive needed” is for certain categories of works, that decision must be premised on the idea of an optimal level of production (for example, here, enough emails and catechisms, not enough music).
That in turn raises content-neutrality issues. If you are afraid of overproduction of catechisms, or even “forms of works,” then you have to start comparing the social value of that category to that of other categories. Doubts about that enterprise lead to objections to efforts to deny porn or advertising protection. . . and they motivate some critiques of Congress’s denial of copyright protection to fashion.
Loren responded to my queries on this score by noting that her proposal is only aimed at affecting the robustness of copyright protection, not its grant in toto. I think that makes a great deal of sense given the trend in IP scholarship to recognize “uniformity costs” of a given legal regime. But I also think that this line of scholarship, at least in cultural realms, is going to have to become increasingly sensitive to the issue of content neutrality. . . unless we start to see copyright as less a “property right” than a form of “welfare” for creators.
Tom Bell has argued that copyright can be modeled better as a subsidy to the creative industries than as a property right. In that case, demanding the government give the same rights to all works is like demanding that the NEH give the same size grants to all applicants. For example, in Finley v. NEH, “the Supreme Court ruled 8 to 1 that [a decency test for grants] was constitutional, and that it violated no rights. Grant-seekers, the court noted, were required to submit their proposals to a panel representing diverse points of view; as such, the risk that an arbitrary ruling of indecency would be reached was minimal.”
So perhaps one First Amendment rout-around here would be: Congress sets the term of copyrights to one day for all works, then selectively grants long terms to everything but the disfavored works. But given the Monsanto and Reilly opinions on trade secret takings, we might worry that that interim step constitutes a taking…at least for already copyrighted works. Again, we are back to Bell’s point on whether copyright is best conceptualized as a property right or a form of subsidy granted by the administrative state.
I think the latter….but will wait to explain that point of view until I can discuss bit more about the relationship between intellectual property, the administrative state, and takings.
PS: This is a cross post from Madisonian; there are a lot more links there!