A Note on Incentives, Rights, and the Public Domain in Copyright Law

Abstract

Copyright subject matter and copyright scope have undergone significant expansion since the enactment of the Statute of Anne, the world’s first copyright statute, in 18th century England. Whereas copyright maximalists welcome that expansion, copyright minimalists oppose it. In spite of their divergence, maximalists and minimalists in North America in large part share a view of copyright law as an instrument intended to provide incentives for creativity in the name of the public interest. This paper first develops the observation that the so-called “copyright wars” unfold on the basis of a largely shared, and therefore uncontested, instrumentalist terrain. The paper then goes on to show that even the minimalist iteration of the instrumentalist account of copyright law is entangled with the very expansion of copyright law it seeks to criticize. The paper concludes by sketching largely unexplored affinities between a non-instrumentalist (i.e. rights-based) account of copyright law and the affirmation of a vigorous public domain.

Keywords: copyright expansion, subject matter, scope, Millar v. Taylor, Donaldson v. Beckett, Baker v. Selden, non-communicative use, originality, fair use, instrumentalism, rights-based