Rational Faith: The Utility of Fairness in Copyright
47 Pages Posted: 9 Apr 2016 Last revised: 16 Jun 2020
Date Written: April 5, 2016
The biggest debate in copyright law is also the most fundamental: for what purpose does copyright exist? There are two schools of thought about the appropriate answer to this key question. The first, dominant school focuses on economic efficiency, while the second emphasizes fairness and other moral concerns. As evidenced by scholarly response to the Blurred Lines litigation and Mark Lemley’s recent piece, "Faith-Based Intellectual Property," proponents of each school are often at odds with each other. There is little middle ground.
This "either/or view" of efficiency and moral rights is detrimental to a productive scholarly debate about the value of copyright. More importantly, it is wrong. Scholars like Jeanne Fromer, Christopher Buccafusco, and David Fagundes have recently pointed out that moral concerns are not necessarily inconsistent with, and could in some circumstances even promote, utilitarian ends.
Here, I reframe the debate by suggesting that the dichotomy between moral rights and utility should be abolished altogether. Drawing on insights from neuroscience, psychology, and organizational behavior, I demonstrate that when it comes to creation, fairness — a moral rights concern — often is utility in a very real sense. The evidence suggests that treating creators fairly acts as a powerful motivator for creative work, results in objectively more creative output, and aligns well with public and legal decision-makers’ moral intuitions. In other words, the most efficient copyright system is a fair one.
This conclusion has implications for both copyright scholarship and policy. On the scholarship side, it builds a tangible bridge between utilitarian and moral rights camps. Moral rights advocates previously accused of blind faith in the value of fairly administered rights can now respond that their faith is rational. On the policy side, I explain how novel fairness-enhancing mechanisms like individualized permissive use and an increased focus on distributive concerns in applying the fair use doctrine can increase the overall efficiency of the copyright system — a proposition that should appeal to scholars on both sides of the debate.
Keywords: intellectual property, copyright, utilitarianism, incentive theory, moral rights, psychology, organizational behavior, creativity, innovation, fair use
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