Copyright and Distributive Justice

81 Pages Posted: 7 Apr 2016 Last revised: 25 Sep 2016

Justin Hughes

Loyola Law School Los Angeles

Robert P. Merges

University of California, Berkeley - School of Law

Date Written: April 4, 2016

Abstract

When concerns about copyright’s effect on distributive justice are raised those concerns typically focus on access to information. Most of these discussions assume that by conferring control over access to copyrighted works, copyright in general concentrates wealth with corporations and a few individuals. This article takes a different perspective, proposing that copyright has been and remains an important tool for wealth distribution to a large and diverse group of individual creators. Our focus is not on the distribution of copyrighted works – who controls them and who has access to them. Instead, we concentrate on the distribution of income that flows from sales of copyrighted works. The income streams created by copyright, we argue, constitute another of copyright's contributions to distributive justice.

Using a Rawlsian framework for distributive justice, we consider – both theoretically and empirically – how copyright law allows individuals to earn income and build wealth. We provide a sketch of Rawls’ theoretical structure for distributive justice, including a detailed look at Rawls’ canonical “Difference Principle.” With Rawls’ framework in the background, we first show that copyright contributes vitally to the incomes of average-earning creative professionals (with a focus on the music industry). Second, we argue that copyright is a uniquely effective institution in providing “equality of opportunity” in wealth accumulation. In this regard, we propose that copyright has been central to whatever limited “equality of opportunity” African-Americans have enjoyed in the United States. Indeed, for the wealthiest African-Americans, copyright has been the most important form of property for social and economic advancement. This is so, we argue, because copyright is one of the few social institutions that permit a person to turn labor directly into economic assets (in the form of copyrighted works), and hence to create real, sustainable wealth starting only with personal labor. This, we conclude, is an important dimension of copyright’s role in overall distributive justice.

Keywords: copyright, Rawls, distributive justice, music, African-Americans, wealth, income, creators

Suggested Citation

Hughes, Justin and Merges, Robert P., Copyright and Distributive Justice (April 4, 2016). Notre Dame Law Review, Vol. 92, 2016; Loyola Law School, Los Angeles Legal Studies Research Paper No. 2016-11; UC Berkeley Public Law Research Paper No. 2758845. Available at SSRN: https://ssrn.com/abstract=2758845

Justin Hughes (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-8108 (Phone)

HOME PAGE: http://www.justinhughes.net

Robert P. Merges

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States
510-643-6199 (Phone)
510-643-6171 (Fax)

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