TSosblyyy Gpye ae) wy Spon Copied ane Der lnege, ed D. tudlen AK Solu. Justifying Copyright CRidglhoure , 2002) Michael Spence Visual artists are both the ereators and the users of material protected by cop right. An individual artist may ed by the regime, [tall depends upon the ways in which she creates and appropriates. For this reason itis diffic to weigh the various justifications that have been offered for the system. The most thatcan be hoped is that, in the majority of eases, a legal regime both derived from asystem of royal censorship and sometimes heralded as a bulwark of free spect does more to empower artists than to silence them, The justifications usually offered for copyright fall into two groups. First, there are those that stress the economic advantages of the system. Second, there are those that stress its deontological legitimacy: In broad terms, arguments of the former type have been more popularin the United States, where the constitution- al validity of the copyright legislation depends upon the goal of promoting ‘the Progress of Science and useful Arts. Arguments ofthe latter type have tended to be ‘more popular in mainland Europe, where it has been stressed that creators ‘ont mérité au moins deux récompenses: d'une part, rester les maitres de leur eréation, fruit dela conjonetion de leur intelligence et de leur sensibilité;... ’autre part, ils méritent, comme les autres catégories de travailleurs, dassurer leur subsistanc n conférant la jouissance de leur ceuvre su public, moyennant rémunération’! This regional difference, though its importance it is often exaggerated by com- mentators, helps to explain much about copyright history and politics. This essay will consider each of these types of justification in relation to the specific field of the visual arts. None of the arguments considered here is without 4ifficulty. However, collectively, they do seem to provide some type of justification for copyright protection in at leastsome circumstances, The difficult question that is left to policy-makers and courts, is just how strong that protection ought to be and when it ought to be available. Economic Justifications for Copyright ‘The economic justifications for copyright focus on the need to provide incentives for the creation and dissemination of creative works. For economic theotists, the intended beneficiary of the copyright system is the community as a whole, whichsmands the production of, and access to, as many creative works as possible assumed th ‘goods and thease goods will be allocated to the party who values them the most perfect conditions, the market will ensure luction of ere will be incentive to produce goods hecause their sell will allow a nsts of production and the benefit of the goods to a purchaser, But creative works ar exclud producer to recoup both the said to be ‘public goo hat itis difficult to purchasers from their enjoyment. Becanse of the difficul ingnon-purchasers, there will be no incentive to create and to disseminate works, ofexclud- ey will be under-produced uniess the lawintervenestocu this'mark at the rights given tothe eopyrightowner constitute ted with all mc ‘monopoly’ and entail the dead-weight lo advantages of the eopyrigh n in curing this market fail as ofstate or private patronage, are seen as less desirable in that they ethe centralis: ion of decisions about which types of work willl produce It is clear that, in relation some types of creative work, # cheory holds 1 less inclined to a write a navel, or2 publisher less some merit. An author might able to produce it, if rival ean produces cheap edition of the novel bearing none of the costs associated with creation of the work, And creating a market for the navel by. at least tem rly, excluding the rival publisher, seems to have at least shreeadvantages. First, it atic tha me more deme ha reator should have rant her a sphere of which is considered iment from person- personal autonomy vr those things with narea of individual ticular work, then siven at lea been built ist some pon the reatises of Govern- person and thence of personal liberty yone else, she joins Lereator has joined eet her property in work als to develop as al objects in a way ‘sonality’ The pre- constitutes a vari- ation, But the best tobe that property gout an area over 'm to make choices omnal world. While on, artistic skill able of eonstitut- yby being embod hat copyrig ean NSSTIEYING COPYRIGHT | 401 aniled critique of the work of Locke or Hegel, at without attempting 2 det ‘onal autonomy as justifications for ties with arguments from: east two dificult sghtshould be outlined. usual arguments from personal autonomy ean establish sgnition af her right to con- autonomy. As for argu- const Hirst, none of th eyusioetween the ereator and her worksuch that reo the work is essential to recognition of her personal vrs bnilt upon the work of Locke, thas been pointed aut ( tht a person PAY vcown herself even though shes free, because temas deimpossible toown aper- jxiinglahour' is incoherent because labour, asaseries ingthat could become thesub- trol son; (ii)that the concept of ins, isincapable of being mixed with somethi nd (ili) that there is no necessary reason, even though she ject ofa property right; an Che labourer ought to gain tbe resultant mixture rather than simpy te particularly compelling in the sitwa- is free, why Jose her labour. This last objection would be 5s more the product of @ moment of inspiration than «long ts built upon the work of Hegel, itis not clear why the attainment of freedom, rather than merely ge of choices and thereby ‘ion in which a work is period of labour. As for argument Hegel sees property as essential to as an institution which expands an individual's rans ve eases ber autonomy. A possible solution to this problem has been offered by Waldron who emphasises that person's acti may change it, registering the effets of wiling atone point of time and forcing se adividal's willing to become consistent and stable over a period: This vThect would be lost if others were allowed to alter the object after the initial ¥ continuing control over registering of the individuals will and some tpe o Jevelopment of the individual as an ons jn Telation to an object the object is therefore essential to the ¢ “This reading of Hegel has been criticised by those who point autonomous person. jon in which an indi- ut that Hegel seems to conceive of autonomy as the eonditi vidual van operate as a‘choosing agent, rather than as a particular psychological vite, But, even ifit can be accepted, Waldron’ reading may still mean that the work of Hegel provides only limited support tothe ct that copyrightis essential tothe recognition of personal autonomy. This is becaus the usnal assumption is that works are noterowdable in th ‘ght only bein the context eas we have already seem, sense that their use by one person will not change them for use by another. Tem tn wthich the use of an expressive work does significantly alter it that this justification of eopyright could be relied upon Second, against the claim that control over @ ther personal autonomy, most be st the claim thatthe grant of who would seek to use the creator's work is essential to the protection such control is a limitation of the autonomy of those402 | MICHAEL SPENCE _— Ee work without her permission. It is therefore necessary to demonstrate that the impact on the creator's personall autonomy of refusing her control over the work, ‘would outweigh the impact on the would-be use ators ' autonomy of granting the cre- ch control. Again, there are hints, but only inconclusive hints, as to how this issue might be handled in the work of Lacke and Hegel. Locke argues that the labourer only has a right to appropriate the fruits of her labour if there is ‘nongh ands good eft in common for others’ This proviso has, of course, been the subject, offextensive philosophical commentary. But at least one commentator claims that it preserves the autonomy of the would-be user in all situations in which use of the [work] is essential to the use of his rational and creative faculties’ If that is true, then the argument would only justify a far more restricted version of copyright law than that currently in foree in any part of the world. Hegel address- es the problem of the autonomy of the woul user directly, He acknowledges that given that ‘the purpose of a product of mind is that people other than its author should understand and make it the possession of their ideas’ it must, sometimes be legitimate for others to take the ideas which underpin that valuable intangible and embody them in a different form, Indeed, so much might others take on those ideas that they might embody them in something external in a way that might give them as strong aclaim to those ideas as has the original creator. In other words, preventing them from using a work will sometimes be an unjustified restraint on their autonomy. Hegel argues that the question of when preventing the use ofa work is justified cannot be finally settled either in principle or by post tive legislation.*" He says that ‘copyright legislation only attains its end of securing the property rights or author and publisher only to a very restrieted extent?” but claims that determining precisely whatthat extent should beisa fruitless task. The argument from personal autonomy seemsto support some type of copyright regime, but knowing what precise shape that regime ought to take is exceedingly dfliclt. Conclusion {It can be seen that none of the arguments outlined above offers a knock-down justification for the law of copyright in any particular form, far less in the precise form in which itis increasingly being harmonised at an international level. The history of the law of copyright is a history of disputes between three groups each represented hy powerfill lobbies: the creators of copyright material such a8 authors and visual artists, the producers of copyright material such as publishers and printers and institutional users of copyright material such as educational institutions and libraries, Each of these groups relies upon the type of argumentsJUSTIFYING COPYRIGHT { 403 —_ _ isessay to secure legislative changein particular contexts ‘The inter have been barely represented in copyright re benefited from such negotiations, they the interests of producer trate that the = ontlinediv wer the work, Bese of nomi mntingsthe cre elie discussions. 1m astohowthis have benefited most wh gues that the aqoups- Theyhave benefited east wh sereis‘enough ve interests have coincided with those ofthe non senthe subject sight material. Its accepted ‘hat cumulatively these arguments constitute some torclaims that granting creators control over their work, thereally interesting dis- fons in which f etait and concerns precisely when an how that control faculties! If this discussion and, to ‘ed version of ogel address. acknowledgs other than its eas it must that valuable 1 might others ali creator." In, stitutional user groups that creators hav en their interests coincide with en, as users themselves of copyright ma ‘institutional users of COD) erial aypeofease for} ‘eussion is at the level of obegranted, Creatorsneed actively to participatein arguments outlined in this essay ought do so, they need to be armed with the yonry of those arguments that inppo1 <, won oF lost. Fortis ‘with the weap. stant battles over the detail ofthe conyight system willbe fought and, perhaps ter ex, Proprideé littvaire et ortintigue, sre i Ga (Presses Universitaires de France, Paris, ii [r97sIA.C. 68 iis sis U8. 507392 Ba. 20.487, 1158. iy 5800.8, 640, 167 Bd 20554120 8.C an unjustified yen preventing : iple or by posi- e Ty Hegel, GW. F, Philosophy of Ral ts. with notes by FM nox (Clarendon Press, nd of securing Orford 1967) 2.235 ea vw ibid ats0 Jextent’* but : Beets ttless task ‘The | Te ge Righty Private Property (Clarendon Press, Oxford: 1990 04978 pyright regime, ' Been Doperty Rightin el Repression: Equa and teiduaion i i sor or ee Law of ettleetun! Property (1990) 102 Yael 155815 i aan os Pitnopy of Rghe th notesby TM. Koos Claverdon Fs ; Onford 1967) 3.35, si bid ab 56. knock-down wil sbid ars sin the precise i conal level. The : ‘ee groups each, : aterial such as i ‘has publishers as educational >eofarguments