Claire Corlett

Fish Food, Fish Tanks, and More
William Fisher, CopyrightX: Lecture 2.2, Fairness and Personality Theories: Fairness

William Fisher, CopyrightX: Lecture 2.2, Fairness and Personality Theories: Fairness

In 1783, the author Joel
Barlow wrote a letter to the Continental Congress
in the United States urging the adoption of
copyright legislation. Here’s the heart of his letter. “There are certainly no kind of
property in the nature of things so much his own as the
works which a person originates from his own
creative imagination. And when he has spent
great part of his life in study, wasted his time,
his fortune, and perhaps his health in improving his
knowledge and correcting his taste, it is a principle of
natural justice that he should be entitled to the profits
arising from the sale of his works as a compensation for his
labor in producing them, and his risk of reputation in
offering them to the public.” This letter was both
influential and typical. 12 of the 13 American states adopted
copyright statutes, moved in large part by sentiments of the sort expressed
in Barlow’s heartfelt letter. Since then, authors, lobbyists,
legislators, and judges have frequently invoked
similar arguments to justify or expand copyrights. An excellent collection of examples
can be found in a 1996 article by Stewart Sterk. Here are a few. In 1906, the famous
composer John Philip Sousa sent a telegram to the chairman
of the congressional committee considering legislation that would
have expanded public performance rights, in which Sousa
argued as follows. “Earnestly request that
the American composer receives full and adequate protection
for the product of his brain. Any legislation that does not
give him absolute control of that which he creates is a return
to the usurpation of might and a check on the intellectual
development of our country.” An expansive declaration
of this general sort of comes in the 1954 decision of
the United States Supreme Court in the case of Mazer versus Stein. “Sacrificial days devoted
to such creative activities deserve rewards commensurate
with the services rendered.” The most general idea, latent
on all of these passages, is that a person who works hard
deserves to be compensated, and that the law should
be crafted to ensure that he or she receives
that compensation. Stating this broadly, the idea enjoys
very wide public support, at least in Western democratic societies. Social psychologists tell
us that most people tacitly subscribe to what the psychologists
sometimes call equity theory. The central principle
of equity theory is that justice entails giving each person
in a collective enterprise a share of the products of that
enterprise proportional to his or her contributions to it. A more specific and controversial
variant of this general attitude is that a person who works hard deserves
to control the fruits of her labor. In other words, she should not
only be compensated appropriately. She’s entitled to a property
right in her creations, the right to do with them what she wishes. When seeking support for that idea
and guidance in construing it, lawmakers and scholars commonly
looked at the political theory of the 17th century British
philosopher John Locke. Locke’s writings are attractive
for at least two reasons. First, his ideas have been highly
influential in Anglo-American political culture,
although to a lesser extent in continental European
political culture. Thus, if one can ground a
policy argument in Locke’s work, the stature of that argument increases. Second, Locke did not offer an
unqualified defense of property rights. Rather, he offered an
influential justification of private property balanced by
various analytical devices meant to ensure that the interests
of the public at large would not be impaired by
private property rights. To most modern writers
who seek similar balances, Locke’s complex approach is
intriguing and inspiring. I’ll spend a few minutes now
summarizing the main features of Locke’s general theory
of property rights. This argument is likely to be familiar
to many of you, but not to all. Once we’re done, we’ll consider
the application of Locke’s argument to intellectual property, and
to copyrights in particular. Most of Locke’s theory is
distilled in chapter five of his Second Treatise of Government. The heart of that chapter is a
generative vignette, an evocative story. In that story, a person– for
Locke, that person is a man– comes upon a parcel of land that no
one yet owns, or, more precisely, that is held in common. The man works hard to
make the land productive. How? Well, he doesn’t say
precisely, but you can imagine him removing the trees and the
large rocks, breaking open the soil, ensuring that it’s adequately
irrigated, and so forth. He then plants seeds, which grow
into plants, which, properly tended, produce fruits and vegetables. Engaging in these activities,
Locke argued, the man acquires a natural property
right, not merely to the crops but to the land used to grow them. Here’s the key passage. “Though the Earth and all inferior
creatures be common to all men, yet every man has a
property in his own person. This, nobody has any
right to but himself. The labor of his body and the
work of his hands, we may say, are properly his. Whatsoever, then, he
removes out of the state that nature hath provided
and left it in, he hath mixed his labor with and joined to
it something that is his own, and thereby, makes it his property. It being by him removed from the
common state nature placed it in, it hath, by his labor,
something annexed to it that excludes the common right
of other men, for this labor be the unquestionable
property of the laborer. No man but he have a right to
what that is once joined to, at least where there is enough and
as good left in common for others.” All of this happens, Locke
argued, in a state of nature. In other words, the farmer’s rights
are natural rights, not dependent upon state recognition. But once a state is
formed, it has a duty to recognize and enforce natural
rights acquired in this fashion. According to Locke,
the ability of a person to acquire natural property
rights in this fashion is, however, limited in three ways. These limitations are
commonly known as provisos. The first is known as
the sufficiency proviso. According to Locke, the acquisition of
natural property rights by the farmer only occurs if he has left, as you’ll
recall, as much and as good for others. This restriction is analytically
very important, as we’ll see. But to Locke, it did not
seem especially problematic because, at the time he
wrote, the world contained lots of what Locke thought of as unowned
land, most notably in North America. Today, of course, the
sufficiency proviso would impose much stricter
limits on the ability of a person to acquire real property through labor. The second proviso is known
as the spoilage proviso. According to Locke, if the
farmer has grown so many crops that he’s unable to consume
them and they rot in his barn, he not only forfeits his
right to the unused crops, but also his right to as much of the
land as was necessary to grow them. In other words, his
legitimate holding shrinks. Again, this restriction was not
particularly important for Locke because in his view, it was
rendered largely irrelevant by the invention of money. After the adoption of
a medium of exchange, if you grew more crops
than you could eat, you could exchange the surplus for
hard currency, which you could then use to purchase other
goods and services. The result? A surplus did not go to waste, and
the legitimacy of your holdings was not threatened. The third and last of the
provisos, less clearly recognized in chapter five but implicit in
other portions of Locke’s work, is sometimes referred to
as the duty of charity. This restriction, emphasized by
Wendy Gordon in a pioneering article, entails an obligation to let others
share one’s property in times of great need, so long as one’s
own survival is not threatened. So that, in brief, is the
core of Locke’s general theory of private property. Many nuances and controversies
lurk in this quick summary. In particular, I have not said
anything about the longstanding debate concerning the extent
to which Locke should be understood as an
apologist for capitalism. If you’re curious about
such matters, feel free to explore some
of the materials listed in the bibliography, to which
there’s a link on the map. But we’re going to press on to
consider the application of Locke’s theory of real property to copyright. It’s widely thought that Locke’s theory
provides an even stronger justification for intellectual property than
it does for property in the land. The following circumstances
underlie this assumption. First, the public domain, by which I
mean the large body of unowned cultural products that all authors draw
upon when creating their own works, provides a plausible analogue to
the land held in common that figures so importantly in Locke’s argument. Next, with respect to many
kinds of intellectual property, labor seems to provide a
disproportionately large source of its value. To create a novel, a writer, of
course, needs a few tangible, raw materials– some paper, some
pencils, nowadays a laptop computer, and so forth. But much more of the value of the
novel derives from the writer’s work than from those materials. Consequently, it seems more appropriate
to confer on her ownership of the novel than it does to confer ownership of
the land upon Locke’s homestead farmer. Finally, in ways that will gradually
become more obvious as we proceed through these lectures,
Locke’s famous provisos seem to align in a suggestive
fashion with several of the so-called
exceptions and limitations that copyright law imposes
upon the rights of authors. For all these reasons, Locke’s theory
of property seems to many observers to provide both a potent justification
for the system of copyright law and, equally important,
a guide when determining how far that law should reach. That widespread assumption
turns out to be overstated. Most fundamentally, it’s
less obvious than it first appears that Locke’s argument
has any bearing at all on intellectual property. Even if one can get past
that initial hurdle, it turns out that key
features of Locke’s argument contain ambiguities that blur its
application to the kinds of issues that arise in the copyright context. Let’s take up the
threshold difficulty first. In a shrewd article,
Seana Shiffrin points out that one can find in chapter
five of the Second Treatise six different explanations for
why labor upon unowned land generates natural property rights. Those six rationales are summarized
in the map in front of you. First, natural reason,
Locke argued, informs us that people have, quote, “a right
to their preservation,” end quote. And the only practical way
of effectuating that right is by appropriating–
in other words, owning– the materials we need
for food and shelter. This is more than a
right, in Locke’s view. It’s a duty. We have a religious obligation
to preserve ourselves. More broadly, God commanded us to subdue
the Earth, specifically to, quote, “improve it for the benefit
of life,” end quote. And the only way to do that
is to labor upon it and then, again, appropriate the
fruits of that labor. Next, Locke argued that
our intuitions tell us that a person has a, quote,
“property in his own person,” including, as we saw in
the passage I read earlier, quote, “the labor of his body and
the work of his hands,” end quote. When we mix the work of our hands,
which we own, with unowned raw material, it seems natural, he argued, that
the former should color the latter. Locke’s fourth argument
is that work is virtuous. God gave the world, he argued, quote,
“to the industrious and rational, not to the fancy or covetousness
of the quarrelsome and contentious,” end quote. Virtuous workers deserve rewards. Fifth, it seems natural, Locke argued,
that ownership of a finished product should track ownership of
the most valuable component thereof, which he argues
is typically labor. Sixth, and finally, Locke
throughout chapter five draws sustenance from the
language of transformation. He depicts the homestead farmer’s
activities as attractive, in part because of the way they alter
the landscape from wild to domestic, from raw to cultivated,
from chaotic to ordered, and from nonproductive to productive. All of these changes seemed to Locke
self-evidently worthy of commendation. Once one has catalogued the foundations
of Locke’s theory of real property, it becomes much less
clear that his argument has force in the context
of intellectual property. In particular, as Shiffrin points
out, only the fourth and fifth of the six rationales seem to
provide clear-cut justifications for a novelist’s acquisition of
a property right in her novel. Presumably, the novelist
owns the work of her hands, just as much as the farmer, and
her labor is just as virtuous. But her survival is not dependent
on controlling her novel, nor does a novel seem pertinent
to her religious obligation to subdue the Earth. The relevance of the other
two arguments is uncertain. In short, there’s
trouble at the threshold. But let’s assume that
rationales four and five– the moral value of work and
intuitions regarding proportionality– are indeed adequate to launch a
Lockean justification for copyright. We can thus move on to more
detailed questions concerning the implications of Locke’s
approach for the law. Quickly, we encounter
other difficulties. Perhaps the most fundamental is what
sort of labor is deserving of a reward? What counts, more specifically,
as virtuous intellectual work? There are at least four possibilities,
again listed in the map. The first, which seems closest to
Locke’s original understanding, is that labor consists
of time and effort– hours spent in a chair,
typing, or standing in front of an easel, painting. But as Justin Hughes has
shown, we often speak of meritorious work in other
terms, tacitly defining it as something you’d rather avoid doing or
as something that creates social value. Finally, as Lawrence Becker
suggests, we sometimes speak and act as if
creative labor is more meritorious than
mechanical or drudge labor. These differences matter for copyright. Suppose, for example, that a particular
writer or a particular class of artists love their work and would
rather do it than anything else. The avoidance theory of labor– in
other words, the interpretation that defines labor as something
you’d rather not do– would suggest that writers
of this sort should not be given copyrights in their creations,
whereas the other interpretations would confer upon them legal protection. Perhaps poets, who seem especially
passionate about their work, should be denied copyrights. Another example– suppose you work
hard, but you’re bad at what you do. Indeed, your labor reduces
rather than enhances the social value of the
materials you labor upon. To take a classic
hypothetical example, you find a beautiful piece of naturally
sculpted driftwood on the beach, and you paint it pink,
reducing its beauty. Do you deserve a copyright
in your sculpture? Here’s another challenge. An important dimension
of Locke’s argument is that the magnitude of the reward–
or the property right– acquired by our laborer should be
proportional to the amount of labor he or she has invested. But how do you decide how large a
reward or property right is appropriate? An illustration– Scott Lieberman is a
cardiologist who lives in Tyler, Texas. He’s long been fascinated
by the space program and is an avid amateur photographer. On February 1, 2003, Mr.
Lieberman figured out that the space shuttle
Columbia would pass over his home in East Texas around 9
o’clock in the morning on its way to a landing in Florida. He and his wife went out into the yard
and pointed their cameras at the sky. As it happened, this was just the moment
when the Columbia began to break apart. One of Lieberman’s images
captured that horrific incident. He submitted the photo to the local
newspaper, which, in turn, forwarded it to the Associated Press. By the next afternoon, Lieberman’s
photo was on the cover of Time Magazine. As you know from the first lecture,
as a matter of copyright law, Lieberman surely is entitled to
a copyright in his photograph, so the AP and Time needed
Lieberman’s permission to print and publish the photo. But what is the magnitude of the
appropriate or, in Lockean terms, proportional reward to
which Lieberman is entitled? He himself seems not
to have been mercenary, but he could have demanded
quite a large fee from the AP. Should he have been able to do so? Locke’s theory points us
in the general direction by emphasizing the principle
of proportionality, but it doesn’t give us much
guidance in determining what, exactly, proportionality
means in cases like this. The way in which the issue is
framed matters quite a lot. If you focus on the
amount of effort that went into pressing the
shutter at the moment the space shuttle
passed overhead, then it might seem that Lieberman is morally
entitled to only a small reward. By contrast, if you take into
account the cost of his equipment, his years of self-training,
and so forth, then the appropriate reward
might be much larger. But putting that important
nuance to one side, it’s apparent that the largest source
of the value of Lieberman’s photo arises from luck– being in the
right place at the right time. What’s an appropriate– in other
words, proportional– reward for that? Yet another difficulty–
how exactly should one construe the Lockean
concept of the commons? Various options are listed on the map. One possibility would be to treat the
concept of the commons as equivalent to the idea/expression distinction
that we discussed in the first lecture. As you’ll recall, copyright
law in all countries excludes from protection facts or ideas. Only an author’s distinctive expression
of facts or ideas is shielded. Perhaps the root of that doctrine
is the Lockean proposition that facts and ideas
constitute part of the commons, upon which authors apply their labor. But this, an initially attractive
interpretation, quickly crumbles. For one thing, an author’s
ideas, if they’re original, don’t seem to be part of the commons,
the existing stock of cultural materials, yet they cannot be owned. Another problem arises out
of the fact that, for Locke, labor upon a tract of
land held in common resulted in ownership of that tract. By contrast, labor upon facts and
ideas does not, as we’ve seen, result in ownership of
those facts and ideas. In short, Locke’s theory
doesn’t seem to fit well, the way the copyright law
is currently organized. Last but not least, the
application of the provisos– the famous three Lockean provisos–
to copyright law is tricky. Scholars wrestle over the best
interpretation of those provisos and over the proper application
of each interpretation to intellectual property. Part of the problem arises from the
ambiguity of the provisos themselves. For example, should
the sufficiency proviso be construed to prevent the
acquisition of property rights, when the result would be to leave unowned
raw materials in sufficient amount for others to appropriate? Or rather, should it be
construed more broadly to prevent the acquisition
of property rights only when the overall welfare
of other people is impaired? The answer makes a big
difference to copyright law. In other cases, the proviso
itself seems reasonably clear cut, but its application to
intellectual property is unclear. For instance, although most scholars
think that the spoilage proviso is irrelevant in the context of
copyright because novels don’t rot, Benjamin Damstedt has argued plausibly
that when an author or an inventor secures an intellectual property right
over a socially valuable innovation but then refuses to make it
widely available to consumers, the result is a kind of
spoilage, and the law should devise some mechanism to
override the creator’s selfish choice. Scholars are likely to continue
to wrestle with these puzzles. My own sense is that it’s unlikely
that any scholar will succeed in identifying a unique, true,
or best interpretation of Locke’s original theory in the
context of copyright. Locke himself supported
literary property but had relatively
little to say about why, and his highly influential
remarks about property and land contain too many ambiguities
to provide crisp answers to the kinds of questions
we must resolve today in the context of art, literature,
architecture, software, and so forth. This should not be terribly surprising,
nor should it be terribly disturbing. The real value of Locke’s theory is not
that it gives us definitive answers, but that it encourage us to ask
particular kinds of questions. What resolutions to
particular disputes over IP, or over the rules governing
kinds of disputes, would treat the parties most fairly? In other words, what would
give them what they deserve? Locke’s original writings
and the many layers of commentary upon those
writings sensitize us to some of the considerations that seem
relevant to answering those questions. Most importantly, they urge us to
be attentive to the role of labor in creating intellectual
products, and to give the laborers the rights they deserve, while
insuring that the public at large is not disadvantaged. But what that guideline
means in particular contexts is largely up to us. Set forth on the map
are a few of the issues to which fairness theories
direct our attention. How can we ensure that
the many contributors to composite intellectual
products are fairly rewarded? A premier example
consists of films, which arise out of the creative contributions
of many different people– screenwriters, actors, directors, set
designers, costume advisers, camera operators, and so forth. As we’ll see, the copyright
systems of different countries handle the rights for those various
contributors in quite different ways. When we get to that doctrine,
we should and will ask which, if any, of the national systems fairly
compensate all of the contributors to a film? Another variant of the
same general question– at the end of this lecture series,
we’ll consider the shifting rules governing so-called
traditional knowledge. These are the cultural
products of indigenous groups. When we do so, one normative issue
will be what system of rules, if any, takes appropriate
recognition of the fact that traditional knowledge
typically results from the intellectual labor
of many generations of people? The issue of proportionality will also
come up frequently in this course. Here’s just one context. The value of many copyrighted
works derives, in part, from the labor of the
copyright owner, but also, in part, from materials
taken from the public domain. Classic examples include Disney’s
animated versions of folktales, such as Snow White or Cinderella,
or historical narratives, such as Pocahontas. Should the scope of Disney’s
copyrights in such adaptations of traditional materials be smaller
than the scope of copyrights and films incorporating more original plots? The kinds of considerations
that Lockean scholars attend to suggest that the answer is yes,
but it’s hard to determine how, exactly, one would
implement that guideline. Another example– should
considerations of the sort highlighted by fairness theory prompt us
to reconsider the absence of copyright protection for factual
works, many of which require considerable effort
and investment to produce? As we’ll see, European
countries currently offer reasonably generous
copyright-style protection to databases, which are
compilations of factual materials. The United States is much less generous. In this respect, is Europe right
and the United States wrong? In the same vein, should the
writers of autobiographies have more control over the
narratives of their own lives than they currently do under
contemporary copyright law? Ensuring that people who engage in
creative labor are fairly rewarded creates a presumption that the answer
to each of these questions is yes. Whether that presumption is overridden
or trumped by other considerations, we’ll take up in future lectures. So here’s one last, crucial issue. Does fairness require only giving
authors appropriate monetary rewards, or does it also require giving them
control over the physical embodiments or performances of their works? Rob Merges, a leading
IP scholar and a founder of the Berkeley Center
for Law and Technology, has recently argued for
the latter position. Merges’s stance in these
debates is interesting. For most of his career, Merges
approached difficult policy questions involving the law of
intellectual property from the perspective of
utilitarian theory, the approach that we’ll take up in
lecture number four. In other words, he sought
to identify the set of rules that would be socially
optimal in each situation. Eventually, however, he became convinced
that utilitarian theory is inadequate. In particular, it’s
incapable, he now believes, of generating a solid justification
for the entire intellectual property edifice. So here’s a passage, in which he
expresses this disillusionment. “In my research, I’ve become
convinced that with our current tools, we will never identify
the optimal number of patented copyrighted
and trademarked works. Every time I play the
archaeologist and go looking for the utilitarian footings
of the field, I come up empty. Try as I might, I simply cannot justify
our current IP system on the basis of verifiable data showing that people
are better off with IP law than they would be without it. Maximizing utility, I’ve come to see, is
not a serviceable first-order principal of the IP system. It’s just not what IP is really
all about at the deepest level.” Now, Merges has not abandoned his
utilitarian calculator altogether, but he has relegated it to what he
calls a middle– intermediate– layer in his theory of intellectual property. For deep-level inspiration
and guidance, he now relies on the writings
of Locke and Kant. One of the lessons that Merges derives
from his explorations of those writers is that monetary compensation
for deserving authors is inadequate, that respect for
their work and their autonomy necessitates giving them property
rights over their creations. Decades ago, Merges had
advocated the same position from the standpoint of
cost/benefit analysis. Now he offers an alternative,
non-consequential justification. Much later in this series of lectures,
we’ll take up the question of what, if anything, should be done to alleviate
the ongoing crisis in the entertainment industry resulting, in part, from
the ubiquity of peer-to-peer copying. At that point, Merges’s
argument concerning whether compensation is adequate or
whether property rights are essential will become relevant. We’ll see whether his
contention holds up. This concludes our review of the cluster
of arguments known as fairness theory. We’ll now turn to the
second of the four clusters, commonly known as personality theory.

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