Kant, Copyright and Communicative Freedom
London School of Economics & Political Science (LSE) - Department of Law
May 25, 2011
Law and Philosophy, Vol. 31, pp.1-48, 2012
The rapid expansion of copyright worldwide has sparked numerous efforts to defend the public domain, often on the ground that an expansive public domain is a condition of a ‘free culture’. Yet questions remain about why the public domain is worth defending, what exactly a free culture is, and what role (if any) authors' rights might play in relation to it. From the standard liberal perspective shared by many critics of copyright expansionism, the protection of individual expression by means of marketable property rights in authors’ works serves as an engine of progress towards a fully competitive ‘marketplace of ideas’ - though only if balanced by an extensive public domain of non-propertized intellectual products from which users may draw in the exercise of their own expressivity. This article shows that a significantly different, and arguably richer, conception of what a free culture is and how authors’ rights underpin it emerges from a direct engagement with the philosophy of Immanuel Kant.
The article first questions the widespread assumption - most recently reproduced in the IP context by Robert P. Merges' Justifying Intellectual Property (2011) - that Kant’s position is assimilable to contemporary liberal individualism. In fact, although the idea of freedom is at the heart of Kant’s philosophy, his understanding of freedom is not at all reducible to the ideas of individual liberty or personal autonomy at play in contemporary liberal thought. This emerges particularly clearly from his vindication of the public use of reason, famously articulated in an essay entitled 'An Answer to the Question: "What is Enlightenment?"', first published in 1784. What Kant envisages here is a principled freedom that presupposes a commitment to engage in 'mature' communicative interactions with others in public. Individual expressive liberty is only a condition, not constitutive, of this ‘freedom to make public use of one’s reason in all matters’; and progress towards a fully emancipated (i.e. ‘enlightened’) culture can only be achieved through the (self-)critical reflection that this 'thinking in community with others' demands.
The article's main claim is that when Kant's rather less famous essay 'On the Wrongfulness of Unauthorized Publication' (1785) is read in relation to the arguments for 'publicity' he advanced only a year earlier, a necessary connection emerges between authors' rights (as distinct from copyrights) and what Jürgen Habermas has named the public sphere. I argue that from a Kantian perspective, it is the public sphere of open, inclusive and principled criticism - not the public domain as such - that should serve as the regulative idea for any evaluation of copyright law’s role in relation to the possibility of a free culture.
Keywords: Kant, authors rights, copyright, freedom of expression, public reason, public sphere, public domain, Habermas
Date posted: September 16, 2011 ; Last revised: January 4, 2012