Download This PaperAn Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent and Encouragement Theory
130 Pages Posted: 26 May 2020
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An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent and Encouragement Theory
An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent and Encouragement Theory
Date Written: 1989
Abstract
Hostility to copyright has a long and honorable history. In the nineteenth century, for example, Lord Macaulay argued that while copyright might be necessary to ensure a "supply of good books," the monopoly that it imposed was at best a necessary evil.
"For the sake of the good we must submit to the evil; but the evil ought
not to last a day longer than is necessary for the purpose of securing the good."
A number of studies critical of intellectual property followed in our century. The most well known is probably the economically oriented 1970 study by Stephen Breyer (then a professor, now a federal appellate judge) who argued that the "case for copyright protection is weak," particularly as applied to certain classes of works. The trend has continued. In 1988 William Fisher published a lengthy article recommending that the "fair use" doctrine be reformulated to deny enforcement of copyright claims that conflict with particular economic or utopian goals.5 Even more recently, Tom Palmer has attacked all intellectual property as illegitimate for giving rights beyond what would be available under the common law of tangible property and contract.
Most of the critics of intellectual property have not challenged the concept of private property in other contexts. This pattern is the reverse of what might be expected, since many of the most common criticisms addressed to the institution of private property are less applicable to authors' claims over their works. For example, private property has been strenuously criticized on the ground that it impedes full human development by allowing workers to be separated from the fruits of their labor. Patent and copyright, by contrast, extend the power of creative persons to control what they have made. Nevertheless, in some quarters intellectual property has been hard put to hold its own.
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