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July 3, 2003
Copyright (c) 2003 University of Toronto Law Review
University of Toronto Faculty of Law Review
61 U.T. Fac. L. Rev. 1
LENGTH: 20774 words
ARTICLE: Towards a Public Justification of
* The author would like to thank Sharyn Costin, Marni Tolensky, Rex Shoyama and
the editors of the Law Review for their assistance in preparing this article
for publication; Professor Peter Benson, for illuminating discussions of
property; and Salim Hirji, for his insightful feedback. Special thanks are due
to Professor Abraham Drassinower, for whose seminar on
copyright law this paper was prepared, and to all the students in the seminar, whose
contributions to a lively exchange of ideas were a constant source of
inspiration. I am grateful to Richard Owens and Nick Pengelley, and to the
Centre for Innovation Law and Policy, which provided a publication grant to
assist in revising the article for publication. The draft form of this article
was the recipient of the 2001 Zsa/Centre for Innovation Law and Policy Award
for the best paper in the area of innovation law and policy by a student at an
Ontario law school; my thanks to ZSA Legal Recruitment. Responsibility for any
bad ideas, and bad expression of the good ones, rests, of course, with me
alone. Finally, I would like to dedicate this article to the memory of John
Rawls, who died on Sunday November 24, 2002.
... Justification is argument addressed to those who disagree with us, or to
ourselves when we are of two minds. ... A public justification of
copyright must necessarily be a justification based on the idea that
copyright law is a shield that protects, and follows the contours of, the rights of
individuals. ... In their disagreement, the proponents and opponents of common
copyright acknowledged certain shared ideas about how the concept of literary property
would have to be formulated if claims to it were to be intelligibly and
rationally adjudicated. ... Boudin J. identifies the dual purpose of
copyright law as follows:
"to stimulate creative expression without unduly limiting access by others to
the broader themes and concepts deployed by the author." ... The challenge for a public bilateral justification of
copyright is to explain how
copyright law can be explained as an instantiation of this prohibition on harm. ...
Gordon's position is that absence of
copyright would subject authors to
"compulsion" at the hands of users
"because the user will employ his privilege to do things with the work which the
creator would prefer he not do." ... I have suggested preliminary steps towards a public justification of
copyright law that takes this fundamental insight as its starting point. ...
This article explores the possibility of applying an idea drawn from the work
of John Rawls, the idea of public justification, to
copyright law. As the law of
copyright and its effects have taken on a more prominent position in public discourse,
challenges to its moral underpinnings have emerged which are difficult to
answer. The author argues that this difficulty arises from the lack of a widely
accepted theory of
copyright which qualifies as a public justification, as Rawls conceives of it -- that
is, a justification that can be accepted even by those who disagree, because it
proceeds from shared concepts and normative ideas. The widely-accepted
utilitarian model of
copyright as a device for balancing incentives for creators against public access fails
to meet the criteria of a public justification. The article presents the
argument that only a theory of
copyright as an individual right, a view of
copyright law not currently enjoying much popularity, is capable of being a public
justification in Rawls's terms. It is suggested that such a theory would be
better suited than the incentives-access model to delineating principled limits
copyright protection, and to reconciling the disagreements of
copyright owners and the users of copyrighted works on the basis of values that both
Cet article explore la possibilite d'appliquer une idee tiree de l'oeuvre de
John Rawls, a savoir l'idee d'une justification publique de la Loi sur le droit
d'auteur. Comme la Loi sur le droit d'auteur et ses effets ont une place plus
proeminente dans le discours public, des defis a ses fondements moraux se sont
poses et il n'est pas facile d'y repondre. L'auteur argue que la difficulte
provient du manque d'une theorie largement acceptee du droit d'auteur, qui se
caracteriserait comme une justification publique, telle que Rawls la concoit, a
savoir une justification qui puisse etre acceptee, meme par ceux qui sont en
desaccord, et ce, pour la raison qu'elle procederait de concepts partages et
d'idees normatives. Le modele utilitaire largement accepte d'un droit d'auteur
en tant que dispositif visant a un equilibre entre des createurs et l'acces
public est loin de repondre aux criteres d'une justification publique.
L'article avance l'argument que seule une theorie du droit d'auteur en tant que
droit individuel, (une opinion sur le droit d'auteur qui ne jouit pas
actuellement d'une grande popularite) est capable d'etre une justification
publique, selon les exigences de Rawls. On estime qu'une telle theorie
conviendrait mieux que le modele d'acces aux incitations pour definir
clairement les limites de principe a la protection du droit d'auteur, et pour
aplanir des desaccords entre les proprietaires d'un droit d'auteur et les
utilisateurs des travaux proteges par le droit d'auteur, grace a une base de
valeurs que partagent ces deux groupes.
Justification is argument addressed to those who disagree with us, or to
ourselves when we are of two minds.
Copyright infringers are all around you. Indeed, you may be a
copyright infringer yourself. Few of us feel much compunction about photocopying a
copyrighted newspaper article or downloading a copyrighted song, even if we are
otherwise scrupulous in our observance of the law. Widespread non-compliance
copyright, and the even more widespread sense that
copyright infringement is not anything to get too upset about, indicate that we feel, at
the very least, a certain ambivalence about the moral authority of
copyright law. To echo the words of John Rawls quoted above, we are of two minds about
What form does this ambivalence take? On the one hand, there is a widely
shared, intuitive sense that creative works deserve protection from
unauthorized copying--a sense of what Pamela Samuelson calls
"the essential fairness of
n2 On the other hand, there is growing unease about
copyright's potential to constrain free speech, beneficial economic activity, and
creativity itself. Recent reforms in this area of law have effected a shift
from what was once considered a fair balance between the rights of
[*4] those who create copyrighted works and the liberty of others to use those
works, toward a more expansive definition, and increasingly robust protection,
of the exclusive domain of authors.
n3 The outcomes of high-profile
copyright disputes lead many observers to conclude that the public interest is being
subordinated to the demands of powerful private actors. In this light,
copyright looks not like a rational and justified body of law but, on the contrary, like
a pseudo-justification invoked by powerful organizations and corporations to
clothe the pursuit of their own interests in the language of justice and reason.
My aim in this article is to articulate a justification of
copyright law, or rather to set out the basic framework of one, that reconnects it to
our shared sense of
copyright's 'essential fairness'--a justification that is capable of responding to the
long established intellectual tradition of skepticism about
copyright's moral basis, as well as more recent challenges to
copyright's relevance and theoretical underpinnings. I shall argue that such a
justification can be built around a concept borrowed from the work of Rawls,
the idea of public justification.
A public justification, in Rawls's sense, is one that people can endorse from
diverse and even opposing standpoints, one that is based on shared values and
methods of reasoning and that explains why the position being advanced should
be accepted by an addressee who disagrees. Rawls develops this idea in his work
on justice in basic social and constitutional arrangements, but, as I shall
argue, it is also relevant to the justification of law more generally. This
article explores the possibility of developing a justification of
copyright law that is public in the sense that it is intelligible and persuasive to all
who are subject to
[*5] The idea of a generally accessible justification based on shared, intuitive
notions of justice is simple enough. But as Rawls's careful elaboration of the
concept demonstrates, articulating a public justification is a complex matter
involving rigorous constraints. The idea of public justification can provide an
explanation for the fact that
copyright law is in the midst of what might (with only minimal risk of over-dramatizing)
be called a justificatory crisis. The theory that is generally--indeed, almost
universally--relied on to justify
copyright fails to observe the constraints of a public justification and to be public in
The theory to which I refer is the familiar account of
copyright as a mechanism for rewarding intellectual work so as to ensure the continued
production of intellectual goods. Glynn Lunney coined the label
"incentives-access paradigm" for this model, a succinct way of encapsulating the idea that
copyright's function is to strike the optimal balance between incentives to authors and
public access to their creations.
n5 Although the incentives-access paradigm has considerable intuitive appeal, it
fails to qualify as a public justification because it is not clear how it
translates into the law that we have. No one can agree on, much less explain,
what the correct balance should be between incentives to produce and public
access to what is produced, or how
copyright law achieves that balance. The murky gap between paradigm and practice renders
copyright law indeterminate and malleable, easily enlisted into the service of
particular interests, and distrusted and resented by those whose interests the
law does not favour.
A justification that avoids these failings is only possible if we view
copyright law not as a system for enhancing social welfare, but as an individual right.
I shall argue that it is structurally impossible to develop a truly
intelligible and lucid theory of
copyright that begins from the premise that
copyright is a social welfare scheme. A public justification of
copyright must necessarily be a justification based on the idea that
copyright law is a shield that protects, and follows the contours of, the rights of
In taking this position, I am engaging in a debate that has long divided
copyright scholars: the debate over whether
copyright is a matter of economic welfare or 'natural rights.'
n6 The argument put forward in this article is clearly allied with what is
usually called the 'natural rights' side of that controversy. But the term
'natural rights' has uncomfortably supernatural overtones. My argument is not
that the entitlement to collect royalties for one's musical compositions or
newspaper articles is an ineffable gift that descends to us from on high. It
is, rather, that what makes the Anglo-American system of
copyright law worthwhile and valuable is not that it enhances collective wealth, but
that it protects individual autonomy.
Copyright's basic structure and particular doctrines can be explained in a coherent and
intelligible fashion only on that basis. A public
[*6] justification, therefore, must start from this premise because it cannot
qualify as a public justification unless it is a coherent and intelligible
explanation of the law.
The proposition that
copyright is best understood as an individual right rather than a distributive device
goes against the grain of most contemporary
copyright scholarship. It must defend itself against some well known and powerful
criticisms. The most pertinent of these are the arguments that
copyright must be an instrument of social policy because it is created by statute and
cannot be a 'natural right' because of its statutory time limit. As one
commentator puts it,
"it is hard to imagine a natural right that miraculously disappears" once the statutory term has come to an end.
n7 A public justification of
copyright must--and as I hope to demonstrate, can--respond to these objections.
The 'natural rights' view is also associated (almost always, it should be said,
in the minds of its opponents) with claims that intellectual property rights
are 'absolute'--that is, if the public interest is not the overriding
consideration, then there is nothing left to set the limits on individual
control of intellectual goods. I shall argue, on the contrary, that a
rights-based understanding of
copyright can give us a clearer sense of the limits of justifiable
copyright protection than the incentives-access paradigm, because of the inherent
indeterminacy of the latter model.
n8 Influential rights-holders can always use the incentives-access argument to
demonstrate that the protection available to them should be expanded. In
principle, influential users could just as convincingly enlist the argument to
prove that protection should be narrowed, but in practice rights-holders are
better organized, better funded, and currently have the upper hand in the
public relations battle. As a result,
copyright law has begun to tilt towards more protection than is warranted from the point
of view of a public justification.
While my aim is to show that
copyright is indeed justified, at least as far as its central concepts and core
doctrines are concerned, the positive law currently reaches beyond its own
justificatory basis in certain respects.
Copyright scofflaws may actually have something to show us about the inherent limits of
copyright. In the age of Napster and Gnutella,
copyright may in fact be honoured more in the breach than in the observance, in the true
meaning of that proverbial phrase--which is not that it is more often breached
than obeyed, but that technical infractions are sometimes more in harmony with
the spirit of the law than obedience would be.
Part II of this article considers the questions and challenges that a
copyright must address through a discussion of
copyright controversies that have captured the public imagination, both in our own time
and in the eighteenth century, when modern
copyright law emerged. In Part III, Rawls' concept of public justification and its
copyright law are explored in more detail. I suggest criteria that a justification must
meet in order to qualify as public in Rawls' sense and, in Part IV, explore
what those criteria imply for the appropriate form of a public justification.
In Part V, I argue that the currently prevailing model of
copyright is structurally incapable
[*7] of being a public justification. In the last part of the article, I put
forward some initial propositions as to how a public justification of
copyright might take shape. This account is necessarily an incomplete one; a thorough
analysis of how the details of
copyright doctrine would fit together in the framework of a public justification is
beyond the scope of this article. What I hope to show, and must show to sustain
the argument that
copyright can be publicly justified, is that the central animating ideas of
copyright law are based on intuitive and generally recognized notions of justice.
II PROBLEMS FOR A JUSTIFICATION OF
A. Current Controversies: Napster and
The Wind Done Gone
Copyright has been prominent in the news recently, and it has not been flatteringly
copyright story in particular has been all but impossible to ignore: the Recording
Industry Association of America's (RIAA) lawsuit against the online
music-swapping service Napster, an application widely heralded as having the
potential to revolutionize the existing structure of music distribution and to
erode the dominance of powerful music corporations. The portrayal of the
players in this drama in popular discourse was far more flattering to Shawn
Fanning, the originator of Napster and its users (who were depicted as young,
hip, and idealistic), than it was to the
copyright owners (who appeared as old, corporate exploiters of both musicians and
consumers, and churners-out of mass-produced pop).
The public debate over Napster highlighted public ambivalence about the moral
copyright law. While it was widely acknowledged that there was something wrong with
getting music for free without the permission of those who made it, the
recording industry's rhetoric about digital pirates stealing bread from the
mouths of artists seemed to ring hollow.
n9 Courtney Love, who encourages online sharing of her music, accused the major
record labels themselves of being the real pirates.
n10 Many observers noted that the industry might be acting against its own
long-term interests in opposing the new technology. Napster users were more
likely to buy CDs than non-users.
n11 It might have been a more intelligent strategy for the recording industry to
ally itself with the newcomer rather than shutting it down. Furthermore, the
recording industry's battle to shut down Napster seems pointless when new and
more sophisticated applications for sharing music (and other media files)
online are constantly emerging.
[*8] Another recent
copyright controversy--the dispute over Alice Randall's novel
The Wind Done Gone--inspired not so much ambivalence as near-unanimous condemnation. Randall's
book retold the story of Margaret Mitchell's
Gone With the Wind from the point of view of a woman named Cynara, the illegitimate daughter of
the slave Mammy and a character corresponding to Scarlett's father in the
original. Mitchell's estate won an injunction prohibiting the publication of
Randall's work as an unauthorized sequel (the injunction was subsequently
vacated on appeal).
n13 The District Court's decision was criticized as
"outrageous in its utter contempt for artistic freedom."
n14 The use of
copyright to silence a black woman's artistic response to Mitchell's romantic vision of
the Old South seemed a particularly stark illustration of Jeremy Waldron's
"the image of minorities or underdogs being silenced by corporate power pervades
intellectual property law."
As these examples illustrate, we are living in a historical moment when
copyright, once a relatively obscure corner of the law, is prominent in public discourse
and inspires intense debate about why we have it, what it is supposed to do,
whether it does what it is supposed to do, and whether it is worth having in
spite of its drawbacks. The present moment can be instructively juxtaposed to
another, almost three hundred years ago, when modern
copyright law first emerged and provoked a similarly heated debate. In comparing
copyright from the 18th century to those of the 21st, one is struck by how clearly the
current problems of justification can be traced back to the problems that
copyright law faced at the outset. In addition to these challenged that have been with
copyright's early days, our own age of digitization and theoretically dead authors raises
important new ones.
Copyright's Contentious Origins: The Eighteenth-Century Debate
The 18th-century debate over literary property
n16 culminated in the companion cases of
Millar v. Taylor
Donaldson v. Beckett.
n18 In each case, a London publisher who
[*9] held statutory
copyright in a book under England's first
n19 sued a provincial printer for issuing an edition of the same book after its
copyright had expired. The London printers argued that they held an exclusive right to
publish the manuscript even after the end of the statutory term; the statute
merely codified and supplemented a pre-existing, perpetual common law right in
literary property. In support of this claim, they invoked arguments that are
common in present day
copyright debates: it was unfair to allow opportunistic free riders to profit from works
in which they had invested nothing, reaping where they had not sown;
n20 and the author's expenditure of mental labour was the source of an exclusive
right in his creation (one which could, of course, be transferred to the
publisher if the author so chose).
Those who were opposed to recognizing a common law right to literary property
focused their arguments on the fundamental legal and philosophical difficulties
in conceiving of a property right in literary works. The first problem was how
one could acquire such a right. According to long-established doctrine, the
root of private property was physical possession or occupancy. A literary work
could not be physically possessed or occupied because it had no physical
existence. This objection was not merely the reflex of doctrinal conservatism,
but pointed to an enigma at the heart of the very idea of literary property.
How does one become the owner of something that cannot be touched, something
that can be
"stolen through a pane of glass and carried off with the eye?"
The second major problem was that of demarcation. Private property requires
borders that are recognizable so that others can know where they may roam free
and where they may not trespass. Yates J. (the dissenting judge in
Millar) contended that the object of a property right
"must be something visible; which has bounds to define it, and some marks to
n23 A physical manuscript was a concrete thing capable of ownership; but the
Millar, who copied from a previous publication of the poem, did not touch the
author's manuscript. He published what it contained--the author's style,
sentiments and ideas.
n24 In Yates J.'s view, extending the argument that the author owned his
manuscript to include the ideas in it was
n25 Since sentiments and ideas were open to everyone, the same idea could be in
the minds of an indefinite number of people at the same time,
n26 and the boundaries of this supposed property wouldbe impossible to ascertain.
Millar, a majority of the Court of King's Bench accepted the arguments for common law
literary property, with a strong dissent from Yates J. This holding was
Donaldson, where a majority of the House of Lords decided that common
[*10] law property rights in literary works did not survive publication, although
unpublished works were still recognized as enjoying indefinite common law
n27 The 18th century
"battle of the booksellers"
n28 was the Napster of its time; the issues captured the public's attention and
inspired wide-ranging debate in forums both public and private.
n29 The decision in
Donaldson settled one aspect of the controversy, but did not lay to rest the more
general arguments about the nature and scope of literary property. The
conceptual problems grappled with in
Donaldson applied not only to the perpetual common law version of literary property, but
to the idea of intangible property itself, and therefore also to the limited
In their disagreement, the proponents and opponents of common law
copyright acknowledged certain shared ideas about how the concept of literary property
would have to be formulated if claims to it were to be intelligibly and
rationally adjudicated. The proponents recognized that familiar notions of
acquisition and demarcation did not apply, at least not without modification,
to literary property, and that some kind of analogue for them was needed to
explain how a literary work could be property. They argued that in creating the
work through his creative labour, the author established a connection to it
that was analogous to the occupation of physical things. They also identified a
third element of a literary work, neither the concrete marks on the page nor
the ideas or sentiments these conveyed, but the particular expression of those
ideas that could be identified with the author and had finite and
ascertainable, although not tangible, boundaries.
These propositions were the antecedents of modern
copyright law's central doctrines of originality and the idea/expression dichotomy.
n31 The fact that the difficulties in response to which these doctrines emerged
still figure so prominently in debates over
copyright indicates that
copyright still has to address the same fundamental questions. How does one establish a
property right in something that cannot be touched? Where does that property
begin and end?
C. The Special Problems of a Digital, Post-Author Age
While any justification of
copyright must rise to the challenges raised in the eighteenth century, it must also
face new challenges. There have been two important developments which call into
question the foundations and relevance of
copyright law-one is technological, and the other, theoretical.
[*11] Technological change has made it quicker and easier to make copies of works
regardless of whether they are protected by the law or not. The practical value
of legal remedies is undermined to the extent that digital copying is diffuse
and difficult to detect. The most promising means for the owners of digitized
works to protect their rights are technological (for example, 'rights
management' software) rather than legal. If
de facto protection works,
de jure protection and its limits seem not to matter very much. Technological barriers
can block access to elements of a work that are uncopyrightable in law, or
prevent copying that would fall within the fair use exception.
Another important change emerges from contemporary literary theory: the
disintegration of the idea of original authorship.
Copyright law is often seen to be dependent on the Romantic ideal of authorship as an
act of purely individual creation. This version of what authors do is regarded
by the mainstream of contemporary literary criticism as hopelessly naive and
outdated. As Mark Rose argues
A gap has appeared between the dominant mode of legal thinking and that of
literary thinking. 'Originality,' the necessary and enabling concept that
underlies the notion of the proprietary author, is at best a problematic term
in current thought, which stresses rather the various ways in which, as it is
often put, language speaks through man. Where does one text end and another
begin? What current literary thought emphasizes is that texts permeate and
enable each other, and from this point of view the notion of distinct
boundaries between texts, a notion crucial to the operation of the modern
system of literary property, becomes difficult to sustain.
By clinging to this notion of solitary and autarkic creation, Jessica Litman
has argued that
copyright law actually prohibits the very thing that authors unavoidably do, which is to
borrow and recombine material from each other's works.
In light of these developments, critics have dismissed
copyright as irrelevant
n35 and meaningless,
n36 as based on charming but untenable fictions,
n37 and as a leaky old boat whose passengers are misguidedly scrambling to keep it
n38 Proposed responses to
copyright's widely reported demise range from declarations that information wants to be
free and should be left that way, and calls for the creation of new rights to
plug the gaps in
n39 to pronouncements that the law will soon disappear as it is
[*12] superseded by technology.
n40 One thing that the critics agree on is that
copyright law is founded on obsolete myths and designed for a world that no longer
copyright law is in fact outmoded, it might nevertheless be relatively harmless, though
somewhat pointless, if it does not affect people's day-to-day lives too much.
Its effects however, are far-reaching and profound. The environment we inhabit
contains a great deal of copyrighted material.
Copyright law imposes restrictions on what we can say about an increasingly copyrighted
n42 The things we buy often include copyrighted elements, whose legal prohibition
from certain uses clashes with our intuitive sense that people should be free
to do whatever they like with their physical possessions.
n43 'Intellectual' or 'informational' goods, the kinds of things in which
copyright or copyright-like rights may subsist, now occupy a central place in the economy.
D. The Problem of Legal Uncertainty
While letting such crucial matters be regulated by a law that is outdated and
irrelevant (if the critics are right) is bad enough, predicting how the law
will be applied is even worse because it is unpredictable. There is little
consensus in the case law and academic literature about how to interpret the
central doctrines of
copyright correctly. It has been suggested that it
cannot be done-in a seminal judgment on the idea/expression dichotomy, Hand J.
"nobody has ever been able to fix that boundary and nobody ever can."
n44 An article on the defence of fair use reports that the case law is riddled
with divergent interpretations of the doctrine and characterized by reversals
and divided courts.
n45 Litman describes the boundaries of
copyright doctrine in this kind of turmoil, decisions in
copyright disputes may appear to the disputants to be as irrational and capricious as
determining the ownership of a cherry tree by awarding it to the person who
bakes the best cherry pie.
E. Public Justification as a Solution to
Copyright's Justificatory Problems
In defining the task of a justification of intellectual property, it is helpful
to begin with the justificatory questions associated with physical property.
n48 This is not to suggest that the two can be equated--obviously the differences
copyright and 'normal' property do involve similarly structured relationships between
owners and others. Both entitle the owner to exclude everyone else from what
the law has designated as belonging to him. Accordingly, a justification of
copyright must respond (at a minimum) to the objections that can be raised against any
kind of private property. Those objections come from two constituencies: the
propertyless who are excluded by property rules from resources and goods they
think they should have access to; and the property owners who feel that their
entitlements are narrower than they should be.
n49 A justification has to explain why exclusive rights exist at all, and why they
have the limits they do.
The difficulties of finding a satisfactory answer to these questions are more
pronounced, however, when the property in question is intangible. In the case
of tangible property, the answers have an apparently self-evident quality that
does not extend to
copyright. There is an obviously compelling force to the claim
"this is mine" when
"this" is physically in the hands of the person who makes the statement and it makes
sense that the limits of the legal entitlement should correspond to the
physical boundaries of the thing. This explanation is of course an
oversimplification that distorts the legal nature of property in material
things; physical possession does not equal legal ownership, and the limits of
legal rights in a thing do not equal its physical boundaries.
n50 But even such an oversimplification is unavailable to a justification of
copyright, which can only attempt to replace the physical connection between owner and
thing, and the physical boundaries of the thing, with abstractions and
Millar, Yates J. presciently warned that recognizing literary property would
"[open the door] for perpetual litigations" and that these disputes would involve
[*14] uncertainties and doubts."
n52 In other words, recognizing a species of metaphysical property would give rise
n53 He was mistaken only in thinking that the difficulties he identified would
arise with respect to common law
copyright alone, and not in relation to statutory
copyright. If anything, the uncertainties and doubts are greater today than they were in
the 18th century.
n54 The parties to a
copyright suit are likely--indeed, almost guaranteed--to have very different ideas about
the appropriate framework for interpreting and applying the law. Faced with
opposing views of what
copyright law is about and why it exists, courts have the onerous duty of explaining
their decisions in terms that are intelligible and acceptable from the point of
view of both parties to the dispute. This is particularly true for the losing
side, since the legitimacy of law depends on its ability to be accepted as just
by reasonable people even when it produces outcomes contrary to their interests.
Perhaps this cannot be done. One way to make sense of
copyright law is to say that its authority is not normative and never has been; it is
simply a tool designed to serve the interests of a section of society (the
Stationers of the 18th century, the Microsofts and RIAAs of the 21st) powerful
enough to impose its interests on the rest of us. On that view,
copyright's self-justificatory rhetoric--its attempt to concretize the phantom property it
protects through metaphorical allusions to real property--is nothing but a
contrivance for putting an acceptable face on state-backed bullying.
On the other hand, we should not ignore the law's understanding of its own
rationality and normativity, articulated in three hundred years of
jurisprudence that attempts to justify it to those who must comply with it. To
borrow a phrase from Ernest Weinrib, law understands itself as justificatory
n55 Even if as a matter of historical fact
copyright emerged at the instigation of certain interest groups, as
law it presents itself as normatively grounded in values that transcend its
historical origins. The development of doctrines central to
copyright in the case law is an ongoing defence of
copyright's view of itself as rational and justified. The measure of the success of this
justificatory enterprise is whether it can be acknowledged as reasonable even
by people who hold opposing views on the issues involved. This brings us to
Rawls' concept of public justification, the defining feature of which is its
capacity to be understood and accepted from widely diverse points of view.
III PUBLIC JUSTIFICATION
Rawls presents the idea of public justification in response to the following
question: how can citizens who hold competing and even largely irreconcilable
beliefs share a mutually
[*15] acceptable conception of justice?
n56 A basic premise of Rawls's theory of justice is that people differ in what he
"comprehensive doctrines" they espouse--that is, in their
"conceptions of the world, religious and philosophical, and their views of the
moral and aesthetic values to be sought in human life."
n57 A pluralism of reasonable comprehensive doctrines--a reasonable doctrine being
defined as one that recognizes the freedom and equality of others
n58--is the natural fruit of an individual's exercise of his or her independent
powers of reason and his or her freedom of thought.
n59 For Rawls, a person is defined as free in part by the fact that her pursuit of
her own ends, according to any reasonable conception of the good, is entitled
to be given independent weight and not to be subordinated to aggregate goals.
n60 A free society cannot therefore be regulated by a single, dominant
comprehensive doctrine, or in a way that suppresses the reasonable
comprehensive doctrines of some of its citizens.
To secure the benefits of living in a well-ordered society, however, people
need authoritative principles of justice to regulate their association as a
society and their interactions with each other. Thus arises a dilemma that Kent
Greenawalt sums up as follows:
Rawls' solution to this predicament begins with the observation that even
between very different reasonable and comprehensive doctrines, there is still
an area of common ground, or an
n62 Under this consensus, there will be some principles of justice that citizens
can agree on, even though there may be different reasons (based on their
different comprehensive doctrines) for accepting them. A related idea, the idea
of public reason, imposes constraints on how discussions about the content and
relative priority of those principles can be carried on. These constraints all
flow from the idea that in persuading others to endorse principles of justice,
we address ourselves to them as free and equal individuals whose reasonable
views are entitled to the same weight as our own. Public reason is therefore
barred from appealing to any
[*16] particular comprehensive doctrine, and from using elaborate, obscure or
n63 It is restricted to
"accepted general beliefs and forms of reasoning found in common sense, and the
methods and conclusions of science where these are not controversial."
If widely variant perspectives on critical subjects dominate political life,
society may suffer disunity. Citizens may not be able to depend on the
application of any core principles of justice and they may find none to which
they need feel loyalty. Some citizens may well find themselves coerced by the
state to act on the basis of reasons with which they feel no resonance. That
may be unfair and a source of great antagonism. On the other hand, if citizens
are told that... they should not use their most fundamental beliefs about what
is true, that may seem both unreasonable and a serious infringement of full
liberty. This conflict is the dilemma.
A public justification is one that abides by the constraints of public reason
and invokes only those values that can be endorsed by an overlapping consensus.
Rawls argues that when it comes to certain matters, citizens have a
"duty of civility" to explain their views and choices to each other in the form of a public
n65 The duty of civility is not a duty to convince others that the principles one
advocates are the truest or best principles. People can be expected to settle
for principles that fall short of what they consider optimal, provided that
they can still accept them as fair and reasonable and that they can expect
others to be bound by the same stipulation.
n66 A public justification aims at no more than demonstrating to others that the
principles at issue are ones they can reasonably accept as free and equal
The idea of public justification, as presented by Rawls, is partly shaped by
the particular problems of justice that concern him, questions about
fundamental constitutional issues and the basic arrangements of a just society.
n67 As far as ordinary citizens are concerned, the duty of civility and the
constraints of public reason only apply when questions of this nature are up
for discussion. Rawls contends, however, that it is always desirable to honour
the constraints of public reason when the exercise of state power is at stake;
for certain official forums and for certain public officers, this is always
Perhaps the key reason that the duty of civility applies to citizens' choices
about important political issues is that in a democracy, those choices become
the law. In forming and advocating their opinions on such matters, citizens
should act from public reason to ensure that the law, which embodies the
opinion of the majority, is legitimate and morally binding from the standpoint
of all who are governed by it, not just the majority.
n69 The close connection between public reason and the legitimacy of law suggests
that those who are charged with interpreting and applying the law are always
bound by the duty of civility, whether or not the matter at hand is a matter of
basic justice. Not surprisingly, Rawls singles out judges as officials to whom
the ideal of public reason applies in a special way, and identifies courts
(especially supreme courts) as exemplars of public reason.
Thus, the relevance of the idea of public justification extends beyond the
fundamental questions of constitutional and social justice that Rawls had in
mind. It has a special connection to the law in general, both because law is
coercive and because it is interpreted and applied by judges, who are always
bound to present their reasons within
[*17] the constraints of public reason.
n71 This idea is relevant to
copyright law because
copyright, although it is not what Rawls would call a
"constitutional essential," has the power of law to coerce and the duty as a justificatory enterprise to
explain itself in the language of public reason.
The attributes of a public justification can be summed up as intelligibility
and persuasiveness. These are not terms that Rawls himself explicitly uses, but
it can be seen as implicit in his account that a public justification, in order
to meet the criteria he describes, must be capable of being understood, and of
persuading those to whom it is addressed, in specific ways. The idea of public
reason indicates that the reasoning in question must generally be intelligible
in that it must rely on common understanding and accessible methods of
reasoning. The idea of overlapping consensus specifies that an argument should
be persuasive in that it must be grounded in ideas shared by reasonable people
who disagree on deeper questions. A public justification is intelligible and
persuasive because it
"proceeds from what all parties to the discussion hold in common."
The task of a justification of law can be broken down into two essential
components. First, it must explain the law. Second, it must explain the law to
the parties who are affected by it. I would suggest that a
public justification of law, is one that performs this twofold task intelligibly and
accessibly. From this proposition, we can generate four basic criteria for a
public justification of law, which I will identify as fit, coherence,
predictability, and normativity. These are the attributes that any theory
purporting to be a public justification of law should have, given the function
it is supposed to perform and the constraints within which it operates. If
these attributes are missing from a judicial or academic explanation of
copyright, the explanation does not qualify as a public justification. Pinpointing
separate criteria in this way is a somewhat artificial exercise, since in a
sense they are all aspects of each other, but identifying them does provide a
vocabulary for assessing the adequacy of a given theory of
copyright law from the point of view of public justification.
Fit simply means that a justification should reflect the salient features of
the principles it justifies (in the case of
copyright law, those features would be the institutional structure of
copyright, its main doctrines and key statutory provisions, and the leading expositions
of these in the case law). Fit is perhaps the most elementary requirement for
the justification of a law and it arises from the need to explain the law
intelligibly. If the justification has nothing to do with what the law actually does, then
it is unintelligible as
[*18] an explanation of the law, or it fails to render the law intelligible.
n73 As a case in point, consider the proposition that the purpose of tort law is
to compensate the victims of accidents. The core doctrines of tort law-- duty,
proximity, causation--do not fit easily with this purpose; they leave some
deserving victims with nothing while others, perhaps less deserving, get
compensated. Observing that tort law makes very little sense as a compensatory
scheme, some commentators have dismissed it as an irrational lottery.
n74 Another way of looking at it is that the explanation makes very little sense
from the standpoint of tort law.
Coherence is a more stringent requirement than fit. To be
persuasive, a justification must be coherent. A justification that combines different
considerations incoherently is unpersuasive because the justificatory force of
each consideration is arbitrarily truncated by the operation of others.
Coherence has a special place in the justification of law.
n77 It is one of the defining features of legal reasoning that cases should be
decided consistently; cases raising the same issue should lead to consistent
results and cases on different but related issues should be explicable in
relation to each other. A justification might explain the leading
copyright doctrines in a way that makes sense of each one separately but does not
explain how they all hang together, or may explain each of the leading cases
without showing how they can be reconciled with each other. A lawyer presenting
arguments in court will avoid this kind of argument if possible, because the
court is likely to find it unpersuasive. A legal decision that fails to explain
how it coheres with the rest of the law will be of limited persuasive value.
The requirement of predictability flows from the need to explain the law
intelligibly to those who are affected by it. Parties who go to court to settle a dispute expect to know the framework of
adjudication, to anticipate the factors on which the court's analysis will
turn, and to understand how the court reaches its eventual conclusion. This
means that the outcome will not be arbitrary in at least the most basic
procedural sense; the result will be seen to flow from a rational, transparent
decision-making process which does not depend on the judge's whim, or on some
process shrouded in mystery whose fairness the
[*19] parties are expected to take on faith. It also means that when a similar case
comes up, one can predict a similar result.
Normativity is the foundation of the law's
persuasiveness to those whom it governs. Among the criteria of a public justification, it is of the highest order. A
justification that satisfies all the other criteria, but is not based on
generally accepted normative ideas, falls far short of being a public
justification. It may not be a justification at all, since to justify something
is to reveal its normative worth. If outcomes in cases are determined by the
colour of the parties' hair, for example, the decision-making framework may be
predictable and consistent, but the principle on which it rests is not one that
reasonable people would accept as persuasive or consider to be any kind of
justification. This point is similar to Dworkin's assertion that, as between
two interpretations that 'fit' the positive law, the superior interpretation is
the one that
"shows the law in the best light."
n78 When the aim is to develop a public justification, showing the law in the best
light can be equated to explaining it on the basis of the values that are most
persuasive from the perspective of public reason.
These criteria apply for any public justification, regardless of the nature of
the principles it seeks to justify. They are what makes a justification public.
However, the way a justification actually takes shape will be determined by the
nature of legal principles it justifies. This much follows from the criterion
of fit: a justification will correspond to the characteristics of the material
it explains or fail to be an intelligible explanation. The next section
contrasts two basic forms that legal relationships can take. A public
justification of law will fall into one of two possible categories,
corresponding to these two forms of legal relationship.
IV TWO FORMS OF PUBLIC JUSTIFICATION
Theory of Justice, Rawls proposes a way of identifying principles governing foundational
political arrangements and basic social justice that, he argues, are justified
in the public sense. A central element of the theory is the idea of a
hypothetical contract between all members of society, negotiated from a
position of equality. This initial bargaining position (the 'original
position') is precisely specified so as to ensure that the agreement is
genuinely voluntary and fair. The contract is not, of course, understood as an
agreement that historically took place between people in some pre-social state.
The idea of a hypothetical contract is used to identify those principles that
are justified because people in an initial situation of equality would agree to
The nature of public justification implies that a justification of principles
regulating discrete relationships between individuals should proceed on a
different basis. This is because there is a basic difference in form between
the principles of social justice and
[*20] laws that apply to private, two-sided interactions. Legal principles in the
second category govern relationships between only two people, and the
considerations that justify them should reflect that fact.
Aristotle expressed this distinction as a categorical difference between two
forms of justice: distributive and corrective. Distributive justice applies to
a distribution of benefits or burdens among a group of people. A distribution
is just if each person receives a share proportionate to her desert, according
to whatever criterion of desert has been chosen.
n80 Corrective justice ('justice as rectification') applies to two-sided
transactions. The injustice it addresses is a gain by one party at the other's
expense, and it rectifies this injustice by simultaneously subtracting the
unjust gain from one and adding it to the depleted holdings of the other.
The idea of public justification is relevant to legal rules whether they are
distributive or corrective in form. In either case, the law's normative
authority depends on the possibility of it being endorsed from the standpoint
of public reason by those who are subject to it. The distinction between the
forms of legal relationship is most important for the method of assessing
whether they can or would be so endorsed.
A. Distributive Justice
Rawls' idea of a contract from the original position is suitable for the
assessment of principles that govern the basic arrangements of a democratic
society. Like earlier social contract theorists--Locke, Rousseau and Kant--he
is concerned with the restrictions that social cooperation imposes on
individual liberty. Those restrictions are justifiable if individuals would
agree to accept them in return for the benefits of social cooperation. The
basis of their justification is the notional consent of everyone who is bound
by them. On the same logic, the metaphor of a social contract is appropriate
for justifying any distributive arrangement, not just one that sets up basic
constitutional and social conditions. A test for the justice of a distribution
is whether all the participants would reasonably consent to it through a
hypothetical aggregate agreement, the conditions of which will not necessarily
be as strictly specified as Rawls' original position when less fundamental
matters are at stake. The details may vary, but this basic form of
justification is appropriate for all principles of distributive justice.
B. Corrective Justice
For principles of corrective justice, on the other hand, the evaluative
criterion should be the consent of the two parties to the transaction, rather
than the consent of all members of society. For a public justification, it
would be inappropriate to apply a principle to a private transaction just
because the community as a whole has decided to endorse it. Whereas
distributive justice is about allocating entitlements, corrective justice is
[*21] harm done or not done to entitlements already in place.
n82 If A harms B, but no liability is imposed on A because his activity furthers
some collective goal, B will understandably be unimpressed. She will wonder why
she, of all people, is the one to be sacrificed to this collective goal,
however much she shares in the general approbation of it.
Entering into a transaction with another individual, like entering a social or
collective arrangement, involves accepting certain constraints on one's
liberty. Anyone who interacts with another person can be deemed to accept an
obligation not to harm the other person, or to take anything away from the
other person's rightful possessions. The duty to avoid harm follows from the
equality of the parties, a basic normative principle which reasonable people
can be presumed to accept as one that regulates their interactions.
This equality-derived prohibition on harm is self-limiting. We cannot presume
that a person takes on any positive obligation, simply by virtue of entering
into a transaction with another, to take responsibility for the other person or
to assist her in furthering her own purposes--even if failure to do so will
cause the other to suffer loss or deprivation. This idea, expressed in the
common law as the principle that there is liability only for misfeasance and
n84 is the touchstone for a justification of corrective justice principles.
n85 It performs the evaluative function that the social contract metaphor performs
in a justification of principles of distributive justice.
The umbrella concept of a public justification, then, can be subdivided into
two forms of justification: one that is relevant to principles of distributive
justice and based on the assent of all parties to the distribution, and one
that is relevant to principles of corrective justice and derived from the
equality of the parties to a transaction. For convenience, I will refer to the
two forms of public justification as 'multilateral public justification' and
'bilateral public justification' respectively.
C. The Incommensurability of the Two Forms
Distinguishing the two forms of public justification in this way leads to yet
one more constraint: a public justification cannot, at a fundamental level, be
based on a
[*22] combination of bilateral and multilateral considerations.
n87 It is possible, of course, for transactional and distributional issues to
arise with respect to the same or related material facts. If I own property,
the law requires me not to interfere with my neighbours' use and enjoyment of
their land, or block their access to easements they have over mine, and also to
observe zoning by-laws and to pay my property taxes. These considerations,
however, apply to different relationships--between me and my neighbour on the
one hand, and between me and my community on the other. My neighbour cannot sue
me for failing to pay taxes, and if I am the victim of a trespass I cannot
claim that the community should compensate me through a tax credit.
The justificatory principles that apply to each relationship, based on
bilateral equality in one case and collective agreement in the other, are not
reducible to each other or to any overarching consideration. Private rights and
public policy interact and affect each other as a practical matter, but each
has its own intrinsic shape determined independently of the considerations that
form the other.
n88 A justification of law based at the deepest level on a mixture of bilateral
and multilateral factors cannot be a public justification. Such a justification
will be an incoherent patchwork of incommensurable considerations and will fit
uneasily with at least some of the constituent parts of the doctrine it
describes. It will also be hard to predict whether bilateral or multilateral
considerations will prevail in any particular case and it will inappropriately
apply norms collectively adopted by the community to relationships between
private individuals (and vice versa).
D. Form and Publicity
Finally, these remarks about form are apposite only because of the distinctive
nature of a public justification and the conditions it must fulfill to be
public. There is nothing inherently wrong with a justification based on a
notion of truth or goodness or authority, rather than the consent of those to
whom it applies. As a simple example, families often make decisions without the
consent of their children, or in the face of their vehement opposition. Parents
are justified in doing this to a certain extent because they have the authority
to decide what is best for their children. And personal relationships between
individuals often involve positive obligations of responsibility and assistance
without which they would be very unsatisfactory. But these are situations where
public justification is unnecessary because they do not involve rules of law or
the possibility of state-sponsored coercion. A public justification of law
addresses those who are affected by the law as free and equal citizens. As a
result, it has no recourse to arguments that
[*23] might be available in other contexts. For a parent,
"because I said so" is sometimes a valid justification, but it never is for a judge.
V SOCIAL POLICY JUSTIFICATIONS OF
A. Social Policy Arguments and their Attractions
The prevailing justificatory account of
copyright law in the academic literature and the case law, particularly the US case
law--the model Lunney calls the incentives-access paradigm
n89--is multilateral in form. I identify this approach as a social policy
justification because it explains
copyright as an instrument for the furtherance of policy goals that benefit society as a
whole. Perhaps the best known contemporary judicial statement of the social
policy understanding of
copyright is that of Stevens J. in
Sony Corporation v. Universal City Studios:
The limited grant [of
copyright] is a means by which an important public purpose may be achieved. It is
intended to motivate the creative activity of authors... by the provision of a
special reward, and to allow the public access to the products of their genius
after the limited period of exclusive control has expired.
Copyright law, the argument goes, serves public policy by acting as a distributive
scheme for the allocation of the benefits that flow from creative works. The
exclusive rights created by
copyright channel benefits back to the author of the work to the extent necessary to
encourage a continued flow of new works. As the quotation from
Sony makes clear, the function of rewarding authors is counterbalanced by (or
rather subordinated to) the need to ensure public access to their works; the
copyright are determined by this consideration. The scheme works to create the balance
between production and dissemination of creative works that is optimal from the
point of view of social welfare.
Most accounts of social policy equate social welfare with maximum economic
efficiency. The purpose of
copyright is to replicate as closely as possible the allocation of intellectual
resources that would result from a perfectly functioning market. The reason
copyright is needed at all is to correct a 'free rider' problem (intellectual goods may
require substantial investment to create but, once created, are easy to
appropriate) which prevents the market from functioning properly.
n91 The limits of
[*24] triggered at the point where it starts to impede market function itself, thus
defeating its own purpose.
An alternative characterization is put forward by Barbara Friedman, who defines
the social goal served by
copyright as a thriving culture. The purpose of
copyright is to encourage the emergence of new and original works to the greatest extent
possible without stifling cultural dialogue.
n92 Although these approaches differ in their understanding of the content of
social welfare, they are two examples of the same form of argument.
The social policy justification looks promising as a possible public
copyright. The goal of serving the public good is one that everyone presumably condones.
The balance between production and dissemination seems to strike a fair
compromise between the interests of authors and the interests of those who use
their works. It views
copyright as a social contract, or a contract between authors and society, designed to
"find the minimum level of incentives possible so that society can make the best
possible bargain for itself."
n93 Thus the restrictions imposed by
copyright are ones that we might reasonably expect all members of society to agree to;
they are designed to secure benefits for everyone, and tailored so as to
achieve that good with the least possible offsetting sacrifice.
Another apparent virtue of the social policy approach is the simplicity of the
framework. It acts as a kind of decoder of
copyright doctrine. There is no need to confront directly such notoriously intractable
questions as what originality really is, or what the difference is between an
idea and its expression, because these terms are seen simply as devices for
converting policy decisions into results in particular cases. As Holmes might
have put it, the rights defined by
copyright law are nothing more than the
"hypostasis of a prophecy" that society will, for reasons determined independently of the law, bring the
force of the state to bear on those who copy certain things, but not others.
B. How the Social Policy Model Fails as a Public Justification of
Copyright: The Example of
Lotus Development Corp. v. Borland International
The social policy model may be a very good public justification of a scheme
that perhaps we ought to adopt. It is not, however, a public justification of
copyright law we do have because its connection with what the law actually does is too
tenuous. In other words, its most obvious shortcoming is that it does not meet
the criterion of fit. To illustrate, I will use an example of the economic
variant of the argument in action:
[*25] Boudin J.'s concurring judgment in
Lotus Development Corp. v. Borland International.
n95 This example will also show that the social policy model, applied to
copyright, fails to meet the other criteria of a public justification and does not
provide an intelligible framework for interpreting the law.
The issue in
Lotus was Borland's admitted copying
n96 of the menu command hierarchy (the system of connections between on-screen
commands and functions that enables a user to manipulate the software) in
Lotus's spreadsheet program. Borland incorporated the Lotus menu command
hierarchy into its product so that users of the Lotus program, which dominated
the market, would be able to switch programs without having to learn an
entirely new user interface. The court held that the elements of the program
copied by Borland were a system or method of operation, and therefore
uncopyrightable pursuant to
§ 102(b) of the US
This result can be reached from basic principles of
copyright as expressed in leading cases such as
Baker v. Selden
Computer Associates International Inc. v. Altai,
n99 and that is precisely the approach that the majority of the court took. The
majority crafted its decision to be consistent with earlier case law and
initiated new developments only to the extent that the case before them raised
issues outside the scope of the preceding cases. For Boudin J., on the other
hand, the result was determined by his view that preventing Borland's
activities would be anti-competitive. Users who had invested time and effort in
learning the Lotus interface would have to stay with Lotus for that reason,
even if Borland's product was superior.
Boudin J.'s reasoning epitomizes the idea that the law is an instrument in the
service of social policy:
For me the question is
not whether Borland should prevail but on what basis. Various avenues might be traveled, but the main choices are between holding
that the menu is not protectable by
copyright and devising a new doctrine that Borland's use is privileged.
This reasoning pays little attention to what the
copyright statute actually says. The law provides that
copyright does not extend to processes, systems or methods of operation, but nowhere
does it indicate that these terms are code words for things the protection of
which prevents competitors from selling compatible products. The analysis is
unapologetically detached from the law itself, which is enlisted only to
provide a rationale for the decision after the fact. Boudin J. is even ready to
invent a new legal doctrine to meet that need if necessary.
n101 The justification is not designed to fit the law; on the contrary, the law is
to be redesigned to fit the justification.
[*26] Boudin J. identifies the dual purpose of
copyright law as follows:
"to stimulate creative expression without unduly limiting access by others to
the broader themes and concepts deployed by the author."
n102 In theory, the two sides of the equation should be balanced in light of the
overall goal of maximizing efficiency. Boudin J.'s reasoning does not show
exactly how this is done, but simply proceeds from the conclusion (apparently a
speculative one) that market conditions require giving priority to the
principle of public access. There is nothing in the facts to suggest, however,
that the desideratum of encouraging innovation does not apply to Lotus'
product. Indeed, in Boudin J.'s own view, the utility of the product may
enhance the case for protecting it.
n103 The competing principle of public access simply cuts it short.
Boudin J.'s approach is not (and does not claim to be) a coherent explanation
of the case law; there is no reference to market conditions in leading cases
Baker. Nor is it a reliable basis for predicting the results of future cases. The
outcome of this case turns on the market dominance of Lotus' product, but in
the next case the determinative consideration might be to ensure that an
important player in an economically vital industry gets a fair return on its
investment. Normatively, the idea of liberating the consumer from Lotus'
monopolistic clutches has its appeal, but it is not the only story that could
be told. The strong
copyright lobby might describe this outcome as a handout to a free rider at the expense
of a true innovator. The
Lotus decision might lead a budding software genius to give up in despair and look
for another job thinking that his creations would become more susceptible to
piracy as they became more successful.
C. The Inefficiency of
Copyright Law as an Instrument of Social Policy
These difficulties are not peculiar to the economic model. They are symptomatic
of a problem inherent in any analysis of
copyright as a distributive scheme.
Copyright cases are structured as tort actions between an individual plaintiff and an
individual defendant; an action structured in this way is an illogical place
for the furtherance of distributive justice. Legislatures set up the basic
copyright, but the way the doctrine takes shape is determined by the courts. It has been
said that some statutes are like legislative hulls that have become encrusted
with judicial barnacles.
Copyright statutes are formed out of barnacles; the growth of the svelte Statute of Anne
to our lengthy modern
copyright statutes took place largely through the codification of judge-made
developments. A public justification of
copyright therefore must focus on its implementation by the courts in private disputes,
where there is no platform for the public to make representations as to what
its policy is and where the rulings do not apply to the community at large, but
only to the two parties who happen to be before the court.
This is not to suggest that a distributive or multilateral justification can
never explain legal principles just because they are applied by courts in
disputes between two
[*27] parties. Tax law, which courts routinely interpret and apply in disputes
between the government and individual taxpayers, is clearly a distributive
scheme and has to be justified on that basis. But, in spite of the resonance of
Lord Macaulay's famous remark that
copyright is like a tax on reading,
copyright law and tax law are fundamentally different in structure.
A tax statute is the kind of statute that sets out rules for promoting public
policy goals, together with an administrative framework for applying them.
Rules in income tax law take the general form
"each person with attribute X gets, in proportion to the extent of X,
benefit/burden Y" (for example, everyone with an income below a certain amount is entitled to a
GST credit, which increases as income decreases). The law usually spells out
what characteristic X is and what the concomitant benefit or burden is. It is
implemented not only through the courts, but through a broadly-based
administrative structure designed to ensure that the rule does indeed affect
everyone with characteristic X. Even tax cases before the courts are not
bilateral in the same way as a dispute between private parties is; one of the
parties is the public, as represented by the government.
According to the social policy argument,
copyright doctrines such as originality and the idea/expression dichotomy are really
proxies for a distributive principle: each author who produces a socially
desirable work the protection of which does not impede competition gets a
reward to the extent necessary to stimulate more production of the same kind.
Courts face four problems (discussed in more detail in the paragraphs that
follow) in trying to interpret
copyright doctrines on this basis. First, they have to conjure the principle out of the
statute since it is not explicitly set out there. Second, the information
needed to determine which works are covered by the principle is unavailable to
copyright law does not provide them with the tools to give effect to the principle.
Fourth, even if a judge applies the law in a way that is faithful to this
principle, he cannot apply it to everyone who should be covered by it, but only
to whomever happens to be in court that day.
Problem One: Identifying the Applicable Policy Goal
The first problem is working out what the relevant public policy is in the
absence of pertinent input from the public. Since
copyright statutes do not explicitly set out policy goals, the social policy explanation
has judges determining policy more or less entirely for themselves (usually
starting from a legislative pronouncement at the highest level of generality,
such as the article of the US Constitution that empowers Congress to enact
"to promote the Progress of Science and useful Arts"
n106) and converting it into decisions through a process that is more like
transubstantiation than interpretation. Such an approach seems inevitably
destined to produce unpredictable and inconsistent results.
Problem Two: Inadequate or Unascertainable Information
The second problem, lack of information, is a frequently noted shortcoming of
an economic analysis of
copyright. Writers on
copyright like to quote George Priest's striking statement that
"in the current state of knowledge, economists know almost nothing about the
effect on social welfare of the patent system or of other systems of
n107 Perhaps they know more now than they did in 1986. They probably do not know
enough to determine with any certainty how
copyright rules can be fashioned to maximize welfare. As Alfred Yen points out, the
variables include the relative costs and benefits to society of all possible
uses of a work, the incentive effects of all the rules, and the market
behaviour of all authors and potential infringers who would be affected by
n108 This information is so complex and fluid that it is probably impossible to pin
down. To expect a judge equipped only with legal training and the evidence
adduced by the parties before her to arrive at the right answers would indicate
a faith in the powers of the judicial mind altogether uninhibited by practical
Matters are no less murky if the goal is cultural vitality rather than economic
welfare. Friedman argues that the objectives of
copyright law are
"the promotion of learning" and
"preserving and enhancing the public domain."
n109 Whether or not a cultural work deserves protection should be evaluated
"the quality of the dialogue it embodies."
n110 How does this explain the copyrightability of coloured file labels,
n111 tax forms
n112 and Metallica songs? Do they promote learning? When they eventually enter the
public domain, will they enhance it? What is the quality of the dialogue they
embody? Questions of cultural and artistic merit are questions with which the
copyright jurisprudence expressly refuses to engage, and with good reason. They do not
admit of settled or objective answers. The laying down of rigid rules by
authoritative officials is quite incompatible with the continually evolving
concept of aesthetic value. For this reason, Holmes J. remarked that it would
"a dangerous undertaking" to entrust judges with the evaluation of artistic works,
n113 and indeed the notion has a sinister, Orwellian flavour to it.
Problem Three: The Imprecision of
Copyright Law as a Social Policy Tool
Third, if a judge determines that the production of a certain work should be
rewarded, there are no tools at her disposal for ensuring that rewarding does
in fact occur. No one suggests that the bare fact of
copyright ownership is enticing enough in itself to goad authors into authoring; the
incentives argument rests on the idea of material reward. But
copyright does not materially reward authors, at least not directly. It is trite to
observe that one can have a perfectly good
copyright that generates no profits. Moreover, when copyrighted works do yield financial
rewards, they flow to the
copyright holder--not necessarily the person who created the work. The haphazard
copyright and the provision of rewards for authors does not receive much attention in
academic discussions of
n114 but artists seem to be sharply aware of it.
This limit on the extent to which
copyright benefits authors has nothing to do with subordinating the encouragement of
production to the higher goal of ensuring public access. The point is that even
those works that are copyrighted, and therefore presumably have been picked out
as ones that should be rewarded, generate rewards erratically. As a mechanism
for providing incentives to authors,
copyright is about as rational as tort law is as a mechanism for compensating accident
victims. This observation should raise doubts about a theory in which the
encouragement of production plays such a central role, as should the fact that
copyright clearly subsists in certain works that would have been produced whether they
were entitled to
copyright or not.
Problem Four: The Limited Scope of
Finally, a court in an intellectual property dispute has jurisdiction only over
the parties before it. Boudin J.'s decision may have been based on the idea
that market-dominant products should be considered unprotected systems, but the
ruling did not apply to all market-dominant products; it only applied to
Lotus's product. Microsoft Word still has good
copyright. The limited application of the principle undermines its justificatory
persuasiveness. Even if it makes sense applied to all the works that would be
covered by its logic, it seems arbitrary applied to only one.
In short, the social policy model of
copyright cannot provide a clear, accessible explanation of the
copyright because it is structurally incompatible with the material it purports to
copyright is a scheme for distributing benefits, it is not one that can be explained on
the basis of public reason. The objection is not that social policy accounts
fail to provide valuable insights or to illuminate certain truths about
copyright and its effects. Where they fail is in providing a justification of
copyright law that can be generally understood and condoned.
Two possibilities remain: either it is not possible to develop a public
copyright law (at least not the
copyright law we have) at all; or a public justification can
[*30] be developed but it must be bilateral in form. The second possibility is the
subject of the next section.
VI TOWARDS A PUBLIC BILATERAL JUSTIFICATION OF
The organizing principle of a bilateral public justification is the proposition
that people are obliged to avoid harming each other but they are not obliged to
confer benefits on each other. The challenge for a public bilateral
copyright is to explain how
copyright law can be explained as an instantiation of this prohibition on harm. It does
not advance the analysis, of course, to say that
copyright imposes liability for the harm of
copyright infringement; such an argument would be circular. The justificatory questions
we have to answer are why the entitlement exists at all and why it has the
scope it does. Instead of saying there is harm because there is interference
with an entitlement, we must somehow derive the entitlement from the notion of
Copyright is usually viewed as an entitlement to receive benefits from others, namely
the benefit of payment from others who use one's copyrighted work. 'Harming'
someone by interfering with her receipt of a benefit she expects is not the
same thing as harming her by interfering with her liberty or personal
integrity; this is just another way of stating the common law principle of no
liability for nonfeasance. To explain how we can understand the copying of
another person's literary work as harm in the second sense, I will begin by
looking at Jeremy Waldron's argument for the contrary view.
A. Self-Regarding and Other-Regarding Freedom
Waldron argues that infringement of an intellectual property right is not an
interference with the owner's autonomy because intellectual products are
n117 If I write a novel, you can copy it, distribute it, and translate it (things
the law says only I may do) without in any way preventing me from doing those
things and without using up or wearing out my text. A copier's use of an
author's prose, Waldron asserts, has no effect on the freedom of action of the
author or anybody else.
As Waldron himself observes, this argument does not accord with most people's
In my experience the argument ... is viewed by ordinary folks (particularly
authors) as a piece of academic sophistry. Of course the author's freedom is
affected, they will retort. And many of them add:
"He is no longer free to make the profits that he could have made in the absence
of the copier's infringement."
[*31] Waldron goes on to respond to an argument made by Wendy Gordon which is
essentially a more abstract version of the 'ordinary folks[']' retort. Gordon's
position is that absence of
copyright would subject authors to
"compulsion" at the hands of users
"because the user will employ his privilege to do things with the work which the
creator would prefer he not do."
Waldron objects to setting up the issue in this way because the compulsion of
copyright (users compelled not to copy) is not equivalent to the compulsion of no-copyright (authors compelled to put up with users doing things the authors don't want
them to do). There is a distinction here between what Waldron calls
"self-regarding freedom," my freedom to follow my preferences in what I do, and
"other-regarding freedom," my freedom to have my preferences satisfied by what you do.
n121 Interference with my freedom in the second sense is not really interference
with my freedom at all.
It is true, as Waldron argues, that copying an author's work does not interfere
with the author's self-regarding freedom in the sense that it does not affect
her freedom to use the work herself. But there is more to the intuitive retort--"of course the author's freedom is affected"--than Waldron admits. It is not just about the fact that the author is
deprived of profits (a matter of other-regarding freedom). It suggests that in
some way copying is an intrusion on the author's true freedom, that it deprives
her of choice in the self-regarding sense. The key to seeing how this can be
the case is the connection between
copyright and expressive freedom.
Copyright as Protection of Expressive Autonomy
Expression is not just an artifact or a commodity, it is an act of
communication. Constitutional freedom of expression cases recognize the
intimate connection between communication and personality. One of the
philosophical bases of the free expression guarantee in s.2(b) of the
Canadian Charter of Rights and Freedoms
n122 is the
"intrinsic value" of the right to form opinions and beliefs and to express them freely
"to the self-realization of both speaker and listener."
n123 Physically our bodies are ourselves, but it is through expression that our
intellectual selves become manifest in the world. This may seem a grandiose way
to talk about tax forms and coloured labels, but then the constitutional
guarantee of freedom of expression extends to advertisements for children's
n124 and dental services.
n125 Even banal expression is still expression.
[*32] If we think of expression as a way one puts oneself into the world, it becomes
less farfetched to think that some things one person does to another person's
expression can amount to a form of coercion. When I reproduce, distribute or
publicly perform another person's words, I make that person speak at my
bidding. The author's objection to my activity is not that I have
"used up" the words or even primarily that I may have made a profit, but rather that I
am in control of her speech. This is a harm to the author, an interference with
her 'self-regarding' freedom.
In one of the best-known passages in
Millar, Lord Mansfield defended the justice of recognizing rights in literary
property as follows:
It is just, that an author should reap the pecuniary profits of his own
ingenuity and labour. It is just, that another should not use his name without
his consent. It is fit that he should judge when to publish, or whether he ever
will publish. It is fit he should not only choose the time, but the manner of
publication; how many; what volume; what print. It is fit, he should choose to
whose care he will trust the accuracy and correctness of the impression; in
whose honesty he will confide, not to foist in additions.
Profit is one of the considerations Lord Mansfield invokes, but the overall
theme is the author's interest in retaining control over her identity as it is
instantiated in her work. Lord Mansfield's explanation is more congruent with
copyright law we have than is the idea that
copyright is about financially rewarding authors.
Copyright is a right to control certain uses of a work. The right of control is
frequently, but falsely, equated with a right to profit from it, perhaps
because one of the more popular ways
copyright owners use their rights is as means of directing the flow of profits towards
themselves. But profits, as we have seen, are a side-effect, admittedly
sometimes a very significant one.
copyright owners choose to exercise their rights for reasons not primarily related to
profit. Developers of free or 'open-source' software, for example, distribute
programs that all users are freely allowed to modify and redistribute on
condition that they pass them along to others on similarly open terms. This
diffuse creative collaboration has produced more reliable software than the
traditional 'closed' development process.
n127 What makes it possible, because it ensures that no innovator along the chain
can pull the project out of public circulation, is an imaginative application
copyright called the General Public License (GPL). The GPL is attached to copies of the
software and sets out the conditions binding on the recipient:
The GPL is usually seen as a kind of anti-copyright, sometimes called 'copyleft.' One writer announces that the
free software movement is
"the vital first step in the withering away of the intellectual property system."
n129 But if intellectual property did wither away, so would the GPL, because its
copyright. Anyone who becomes aware of a violation of the license conditions is asked to
"the one who is legally authorized to take action to enforce the license."
n130 Like any license, the GPL is an exercise of the
copyright holder's right to control the conditions on which the work is modified and
published. Violating the license means using the work in a way that negates the
author's choices about where it will go and what it will do, and in a sense
these choices are about the author's own conduct and identity.
To protect your rights, we need to make restrictions that forbid anyone to deny
you these rights or to ask you to surrender the rights. These restrictions
translate to certain
[*33] responsibilities for you if you distribute copies of the software, or if you
modify it. For example, if you distribute copies of such a program, whether
gratis or for a fee, you must give the recipients all the rights that you have.
You must make sure that they, too, receive or can get the source code. And you
must show them these terms so they know their rights. We protect your rights
with two steps: (1)
copyright the software, and (2) offer you this license which gives you legal permission
to copy, distribute and/or modify the software.
The idea that it is harmful to usurp the author's control over his creation
provides the basis for a public bilateral justification of
copyright. The law imposes liability for copying original works and rectifies the harm
through damages and injunctive relief. Protection is limited to original works
because they alone are communicative acts identified with the author. If I
repeat facts or public domain material that someone has quoted to me, I may be
reaping that which I have not sown but I am not making the other person into a
ventriloquist's dummy. The language of the older
copyright cases reflects an understanding of copyrightable expression as the author's
individual stamp on the facts and sources available to her--as Holmes put it,
"the personal reaction of an individual upon nature...something irreducible,
which is one man's alone."
n131 To imitate these original elements is, in the words of Hand J.,
"to impute to the copy the same authorship as the original."
n132 It is implicitly an act undertaken in the author's name, which is a harm if
done without her permission.
C. Objections to the Argument
This argument invites the objection that it proves too much. If
copyright is an right inherent in the individual and not defined by the public interest,
one might conclude that
[*34] it must be an absolute right. But
copyright is obviously not absolute, but limited, perhaps most significantly by the
idea/expression dichotomy and by the statutory term. If it is true that authors
should be entitled to control their original creations, what justifies the fact
that ideas (which may be entirely original with the author) are left free for
the taking in the public domain? And what justifies the inevitable extinction
of the right after a certain number of years?
To begin with the first objection,
copyright viewed as the protection of communicative acts is inherently limited to
expression. Ideas are not acts of communication. It is possible to say that my
original idea belongs to me in some sense, but in legal contemplation
'belonging' is a relational term. To say that something is my property is to
say something about my relationship with other people with respect to that
n134 As far as my relationships with other people are concerned, my idea does not
exist until it is expressed. If my expression conveys the idea to another
person and he in turn expresses it through his own act of communication, I may
well be annoyed but I cannot complain that my voice has been appropriated.
Next, there is the argument that a natural right cannot be one that expires at
the end of a period set by statute. Empirically, that observation requires
qualification; limitations statutes impose time limits on all kinds of rights
that we do not for that reason alone exclude from being thought of as
'natural.' But there is, admittedly, a difference between a law that says if
you sleep on your rights you lose the opportunity to enforce them and one that
says your rights will disappear after a certain number of years no matter what
you do. The question is whether there is any way to reconcile this miraculous
disappearance with the idea that
copyright protects the integrity of one's acts of communication.
The answer lies in the fact that the connection between an author and his words
is not perpetual. Language, as literary theorists are wont to remind us, is
relational, social, and cultural. By the very act of communicating to others--a fortiori by the act of publishing--an author releases her expression into general
circulation. Eventually, there will come a time when those words have traveled
so far from their source that to repeat them will no longer be an act done in
the author's name. Our language is full of bits of expression that originally
came from somewhere, but have lost their association with their origins. Take,
for instance, the metaphor describing judicial glosses on statutes as barnacles
on the hull of a ship, referred to in the last section.
n136 This particular arrangement of words was once someone's expression of an idea
about how statutory interpretation works--perhaps not enough expression to be
copyrightable, but it will serve as an example. In my attempt to locate the
source of the metaphor, I found it recited almost ritually in articles on
statutory interpretation, but never attributed.
n137 The barnacles metaphor floats around unattached in the cultural atmosphere.
[*35] originally said it, his or her autonomy and identity are in no way implicated
in its duplication and republication.
A justification of
copyright based on the duty not to harm is, therefore, not inconsistent with a time
limit. Indeed, it seems to require recognition that at some point even original
expression will eventually go into the public domain. It would be difficult,
perhaps impossible, to specify with any precision where that point is, but it
is fair for the statute to draw the outer limit in the same place for everyone.
Copyright as an Individual Right and the Criteria of Public Justification
The above argument indicates how the definitive features of
copyright can be justified as principles regulating private interactions between
individuals. This approach is well suited to meet the criteria of fit,
coherence and predictability because it proceeds from the rationality expressed
in the legal principles themselves, instead of interpreting them as a
translation of external principles to which they do not quite conform. The
analysis understands the idea/expression dichotomy as indicating that there
actually is a legally relevant distinction between idea and expression and that
'idea' and 'expression' are not code words for something else. It tries to fit
together the leading cases on that distinction and to understand them as a
continuing process of elaborating the same essential idea.
Of course, this approach will not yield straightforward answers; Hand J.'s
remark that the line between idea and expression can never be drawn is not
easily dismissed. This is because when we are called on to determine idea,
expression, and what is the illegitimate use of another person's expression,
the answers are as infinite and varied as the infinite variety of human
expression and interaction. The line cannot be drawn once and for all because a
single bright line would fail to allow for this complexity. Sometimes
simplicity can be the enemy of intelligibility.
A rights-based justification of
copyright might seem, then, to be susceptible to the same accusations of indeterminacy
that have already been leveled at the social policy account. But questions
about originality and expression, like questions about reasonable standards of
care and proximity, are not so much indeterminate as particular to concrete
situations, and therefore not susceptible to
a priori determination or reduction to a neat formula. They are questions on which
reasonable views may differ, but on which it is, nevertheless, possible to
identify what constitutes a reasonable view. If an element of indeterminacy (or
at least uncertainty) remains, it is of a more transparent variety than the
profoundly unknowable mass of economic data that would be required to make
copyright decisions consistent with a social policy justification.
[*36] Normatively, a public bilateral justification of
copyright rests on a single underlying idea: using words (melodies, computer code, or
visual images) that come from another person can, in certain circumstances,
amount to an interference with that person's freedom from which we are obliged
to refrain. This is a normative idea that can be endorsed from any point of
view defined (in Rawls' terms) as a
"reasonable comprehensive doctrine"--that is, one that recognizes the freedom and equality of others. Accepting
that idea does not involve accepting stronger ideological or aesthetic claims.
It is quite possible, for example, to reject the idea of the Romantic author
who creates out of nothing and still agree that some uses of another's words
are wrong; the very form of the proposition, and indeed of
copyright law, implies that some borrowings and 'intertextual' uses of another's work
are permissible. This claim does, however, rely on the notion of individual
freedom, and therefore, would not be compelling to anyone who believes that
individual freedom itself is an illusion. This is a limitation inherent to
public justification, which is a liberal concept and would fail to meet
objections made from a viewpoint that rejects the most basic liberal tenets.
A complete public justification of
copyright would apply the analysis to the major
copyright doctrines not discussed here (such as the defence of fair dealing
n139 and the doctrine of merger) and to the doctrinal details as they are enacted
copyright statutes and worked out in the case law. A full account would, ideally,
present these elements as interlocking parts of a whole body of law expressing
variations on the same basic justificatory principle.
It is to be expected that some aspects of the positive law will not fit into
the framework; a public justification is not only an explanation of the law,
but an internal standard for assessing and criticizing it. Some recent
developments in the direction of stronger
copyright protection are hard to reconcile with
copyright's fundamental values. A public justification provides a standpoint for
criticizing developments that unjustifiably extend the reach of
copyright without condemning the whole of
copyright law as misguided and unfair. Instead it takes the
"essential fairness of
n140 as the benchmark for assessing whether the positive law has exceeded its own
E. Practical Application: Common Ground in the
If the approach I have sketched out here is theoretically valid, its practical
virtue is that it could allow the opponents in the increasingly polarized
copyright to acknowledge aspects of each other's positions without having to abandon
their own views. This is one of the essential roles of public justification as
Rawls conceives it: to open up an area of
"overlapping consensus" where a meeting of minds is possible between members of a pluralistic society
who have differing and deeply-held views.
In the current controversies over issues like Napster, there is little sign of
any such consensus between the passionate defenders of unfettered creative
freedom and the
[*37] equally passionate defenders of the rights of artists. I would suggest that
this polarization can be attributed to the dominance of the incentives-access
paradigm as the justification for
copyright. That theory is inadequate to defend
copyright from its attackers, who rightly point out that, judged in light of its stated
copyright is not a great success. It is not good at doing what it is supposed to
do--giving artists the proper rewards for the production of socially desirable
works. They also argue, again correctly, that the incentives-access model makes
it impossible to ascertain where the limits of protection should be, although
in theory it recognizes that there must be limits. The practical result is that
protection is constantly extended. Proponents of
copyright, meanwhile, are reluctant to admit that there is anything to these criticisms,
because there seems to be a danger that once a point is conceded the whole
justificatory structure collapses. The options appear to be all or nothing. You
are either in favour of a limitless extension of the exclusive zone of the
copyright owner or a limitless public domain; there is no middle ground between a
rapacious recording executive and a pirate.
The justificatory approach I have advanced here, one that views
copyright as an individual right rather than a device for promoting social welfare,
opens up a way out of this impasse. Although it is based on the theory that
copyright is an individual or 'natural' right, a theoretical orientation that is often
accused of absolutism, I would argue that in fact it shows authors' rights to
have their own inherent--even 'natural'--limits; limits that can be recognized
without in any way undermining the validity of the rights. On this theory of
copyright, both the rights of authors and the freedoms of users are based on the same
underlying principles of individual freedom and equality, concepts that both
sides in the
copyright wars not only acknowledge, but claim as their own. An analysis using this
framework would, therefore, reveal that there is some common ground between
them. It would, in Rawls' words,
"[proceed] from what both parties to the discussion hold in common."
n141 It could point the way to a resolution of
copyright disputes that would be acceptable and justifiable even in the eyes of those
who disagree with or are disadvantaged by the outcome.
Most justificatory accounts of
copyright law start with the assumption that it was created as an instrument of social
policy. I have argued that any justification based on this assumption is
structurally doomed to fail as a
public justification. It seems reasonable to surmise that there is a connection
between this failure and the growing popular sense that
copyright lacks moral underpinnings and that the only reason not to infringe
copyright is fear of the consequences if one gets caught. The standard argument that we
copyright to provide incentives is ill-suited to rehabilitating
copyright's image in the eyes of those who question its legitimacy. The theory is
indeterminate and easily pressed into the service of particular interests; no
one knows how much incentive is enough, so
copyright owners can keep arguing for more and more protection. There are also obvious
inconsistencies between what the theory says the law is supposed to do and
[*38] what the law actually does. These shortcomings naturally tend to inspire a
There is, nevertheless, a basic and commonly shared intuition that there is an
element of harm in appropriating another person's original expression. I have
suggested preliminary steps towards a public justification of
copyright law that takes this fundamental insight as its starting point. In a time of
precipitate technological change, such an account might indicate to us the
shape of the basic principles of fairness governing the human interaction with
copyright law is ultimately concerned, regardless of the technological medium involved.
The kind of justification I have tried to sketch out in this article is one
copyright as an individual right, rather than a matter of public policy, but not as an
'absolute' right; its limits are set by the self-limiting justificatory idea of
which it is an embodiment. This understanding of
copyright, therefore, addresses the public perception that overprotection is oppressive,
while preserving and reinforcing the idea of
copyright's fundamental fairness. This is justification designed to show
copyright law 'in the best light,'--one that reveals the normative authority that is now
so widely perceived as lacking.
n1 John Rawls,
A Theory of Justice, rev. ed. (Cambridge, Mass.: Harvard University Press, 1999) at 508 [Theory of Justice].
n2 Pamela Samuelson,
Wired 4:1 (4 January 1996), online:
n3 In the United States, two important legislative developments in 1998 tipped
the balance of
copyright law significantly in favour of authors. The
Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (1998) extended statutory periods of
protection, generally for an additional twenty years. (Some commentators
suggest that the driving force behind this piece of legislation was the Walt
Disney Company's determination to postpone the entry of Mickey Mouse into the
public domain; see Steve Zeitlin,
"Strangling Culture With a
The New York Times (25 April 1998) A2.) The
Copyright Act, Pub. L. No. 105-304 100, 112 Stat. 2860 (1998) [DMCA] gave rights-holders
significant new means of enforcement, including civil and criminal penalties
for circumventing technological anti-infringement measures. Canada has recently
embarked on a new round of reforms to its
copyright legislation, with an eye to updating the law to reflect technological change
and fulfilling Canada's commitments under international
copyright treaties and trade agreements. See Canada, Canadian Intellectual Property
A Framework for
Copyright Reform (Ottawa: The Directorate, 2001) (25 June 2001), online: Strategis.ic.gc.ca
<http://strategis.ic.gc.ca/SSG/rp01101e.html>. The internationalization of
copyright has tended to result in increased protection of author's rights (at the
expense of public access), as the various national regimes (in the
industrialized nations, at least) tend to
"race to the top" to match whichever country offers the highest level of protection. As Canada
copyright legislation, there will be considerable pressure to ensure that our law offers
authors no less protection than they would be granted in the US.
n4 My understanding of public justification and related ideas in Rawls' thought
is drawn from the following sources:
Theory of Justice, supra note 1 especially at 15-19 and 506-14;
Justice as Fairness: A Restatement (Cambridge: Belknap Press, 2001) [Restatement] and its unpublished precursor
Justice as Fairness: A Briefer Restatement (1990) [Briefer Restatement]; Political Liberalism (New York: Columbia University Press, 1993) especially at 133-72 and 212-54;
"The Idea of Public Reason Revisited"
(1997) 64 U. Chicago L. Rev. 765 ["Public Reason Revisited"].
n5 Glynn S. Lunney, Jr.,
Copyright's Incentives-Access Paradigm"
(1996) 49 Vand. L. Rev. 483.
n6 For a discussion of the struggle between these two views of
copyright, and a defence of the natural rights model of
copyright from a point of view that has influenced the analysis presented here, see
"Labour and Intersubjectivity: Notes on the Natural Law of
University of Toronto Public Law and Legal Theory Research Paper 01-06 /
Stanford/Yale Junior Faculty Forum Research Paper No. 01-06 (2001), available at online: Social Science Research Network Electronic
n7 Michael J. Trebilcock
& Robert Howse,
The Regulation of International Trade, 2d ed. (London and New York: Routledge, 1999) at 308.
n8 As Drassinower argues, a theory of
copyright as natural right presents the simplest way of understanding the boundaries of
copyright entitlement. Such a theory need not introduce an additional layer of
complexity by invoking external considerations as limits on
"the author's right necessarily offers, as a matter of its own logic, its own
supra note 6 at 6.
n9 One journalist described his quest for a persuasive explanation of why he
should not download Tupac Shakur songs, which involved consultations with such
ethical authorities as Judge Wapner. Summing up the enigmatic morality of
copyright infringement in the digital era, he muses
"Can you really steal something metaphysical and heavily bass-driven?" See Joel Stein,
"Are You A Music Bandit?"
Time (1 September 2000), online: Time Digital Archive
n10 Courtney Love,
"Courtney Love Does the Math"
Salon (14 June 2000), online: Salon.com
supra note 9.
ibid. calls the battle to stamp out Napster
"one of the more futile legal maneuvers since the impeachment [of President Bill
Suntrust Bank v. Houghton Mifflin Co., 136 F. Supp. 2d 1357 (N.D. Ga. 2001), vacated by
252 F. 3d 1165 (11th Cir. 2001).
n14 Dan Gillmor,
"Copyright Tempest Over 'The Wind Done Gone' Is Outrageous,"
Mercury News (24 April 2001), online: SiliconValley.com
n15 Jeremy Waldron,
"From Authors to Copiers: Individual Rights and Social Values in Intellectual
(1993) 68 Chi.-Kent L. Rev. 841 at 847. For a case that does nothing to improve this image, see
Cie Generale des Etablissements Michelin-Michelin & Cie v. C.A.W. Canada (1996), 71 C.P.R. (3d) 348 (F.C.T.D.) [Michelin].
n16 An account of the literary property debate is given in Mark Rose,
"The Author as Proprietor:
Donaldson v. Beckett and the Genealogy of Modern Authorship" in Brad Sherman
& Alain Strowel, eds.
Of Authors and Origins: Essays in Modern
Copyright Law (Oxford, Clarendon Press, 1994) 23; see also Brad Sherman
& Lionel Bently,
The Making of Intellectual Property Law (Cambridge and New York: Cambridge University Press, 1999) at 11-42.
98 E.R. 201 (K.B.) [Millar].
n18 (1774), 17
Parliamentary History col. 953 [Donaldson]. Donaldson, which involved the same issue as
Millar and even, as chance would have it, the same book, is considered an effective
appeal of the earlier case.
An Act for the Encouragement of Learning 8 Anne c. 19 (1710) [Statute of Anne].
"It is certainly not agreeable to natural justice, that a stranger should reap
the beneficial pecuniary produce of another man's work." See
Millar, supra note 17 at 218. The source of the notion that reaping where one has not sown
is contrary to natural justice is John Locke's
Second Treatise of Government
§ 27-28 (London: Everyman (New Edition), 1993) at 128-29. The London publishers
feared that the sizeable fortunes they had amassed in the form of valuable
manuscripts would evaporate if competitors were allowed to copy them with
impunity. See Rose,
supra note 16 sat 24.
supra note 16 at 16
Ibid. at 20.
Millar, supra note 17 at 232
Ibid. at 230.
Ibid. at 231.
copyright in unpublished works was expressly abolished and superseded by statute in the
Copyright Act of 1911 (1
2 Geo. 5, c. 46).
n28 This phrase comes from Mark Rose,
Authors and Owners (Cambridge: Harvard University Press, 1993).
supra note 16, describes the intense public interest surrounding the
Donaldson case. The controversy generated numerous newspaper columns, pamphlets, letters
and gossip. See also Sherman
supra note 16.
ibid. at 33.
supra note 16, argues that the 18th-century literary property debate expressed and
foreshadowed ideas about authorship and the nature of literary works that still
form the framework of
copyright doctrine today.
e.g. Mark Stefik
& Alex Silverman,
"The Bit and the Pendulum: Balancing the Interests of Stakeholders in Digital
Publishing" (1997) 7:12 American Programmer; Julie E. Cohen,
"Lochner in Cyberspace: The New Economic Orthodoxy of 'Rights Management'"
(1998) 97 Mich. L. Rev. 462.
supra note 16 at 54.
"The concept of authorship (within the meaning of the
copyright law) and the concept of infringement (within the meaning of the
copyright law) are, for practical purposes, synonymous." Jessica Litman,
"The Public Domain"
(1990) 39 Emory L.J. 965 at 1004.
n35 Lawrence Lessig,
"Intellectual Property and Code"
(1996) 11 St. John's J. Legal Comment. 635 at 638.
n36 John Perry Barlow,
"Selling Wine Without Bottles," online: Virtual School
supra note 34.
n39 One such gap is the lack of
copyright protection for non-creative compilations of facts, which has led commentators
to explore alternatives ranging from legislated
"sui generis" database protection to private
"self-help" through contractual arrangements. See
e.g. Michael J. Bastien,
"Noncreative" Databases: Harmonization of United States, Foreign and International Law"
(1999) 22 B. C. Int'l. & Comp. L.Rev. 425; Jane C. Ginsburg,
"Copyright, Common Law, and Sui Generis Protection of Databases in the United States and
(1997) U. Cin. L.Rev. 151.
supra note 35.
n41 As Litman notes,
"copyright extends to an extraordinary variety of products that saturate our society." See
supra note 34 at 995. See also
Michelin, supra note 15.
n42 David Fewer,
Copyright: Freedom of Expression and the Limits of
Copyright in Canada" (1997) 55(2) U. T. Fac. L. Rev. 175, surveys the tension between
copyright law and the protection of freedom of speech under the Canadian constitution.
n43 Wendy J. Gordon,
"An Inquiry into the Merits of
Copyright: The Challenges of Consistency, Consent and Encouragement Theory"
(1989) 41 Stan. L.Rev. 1343 [Gordon,
"Merits"] at 1346.
Nichols v. Universal Pictures Corporation et al. 45 F. 2d 119 (2d Cir. 1930) at 121.
n45 Gideon Parchomovsky,
"Fair Use, Efficiency and Corrective Justice" (1997) 3 Legal Theory 347 at 347-348.
Supra note 34 at 975.
ibid. at 1007, uses this analogy to illustrate her argument that
copyright cases are really decided by factors that have nothing to do with official
n48 Gordon argues that objections that might be raised against private property in
other contexts are actually
less applicable to
copyright because, whereas the institution of private property has been criticized for
allowing the separation of workers from the fruits of their labour,
copyright and other intellectual property regimes
"extend the power of creative persons to control what they have made." See Gordon,
supra note 43 at 1345.
n49 These are the two sources identified by Gordon as ones from which criticism of
a theory of property is likely to come. See Wendy J. Gordon,
"A Property Right in Self-Expression: Equality and Individualism in the Natural
Law of Intellectual Property"
(1993) 102 Yale L.J. 1533 at 1565. Jeremy Waldron has called attention to the priority of the duty to justify
private property to the propertyless, since their individual liberty is
directly constrained by the owner's right to exclude them. See
supra note 15 at 845-46.
I.e., a landowner who emits noise or noxious smells from his land may violate his
neighbour's rights without setting foot on the neighbour's property; what
constitutes a nuisance is certainly not determined by the physical boundaries
of the land, although the two questions are not unrelated. The insight that
legal boundaries are not the equivalent of physical ones was eloquently
expressed by Holmes J., who said that the outline of any property is shown only
by the law of torts (Beech-nut Packing Co. v. P. Lorillard Co., 273 U.S. 632 (1927)), cited in Gordon,
supra note 43 at note 45).
n51 Gordon has argued that
copyright statutes and case law create artificial substitutes for the physical
boundaries of tangible property and the notion of physical intrusion. See
ibid. at 1378-84. Litman identifies the doctrine of originality as an analogue for
physical possession. See
supra note 34 at 972.
Supra note 17 at 250.
supra note 16 at 53.
n54 In Rose's words (ibid. at 53),
"we are the heirs of the institution of literary property that emerged in the
eighteenth century and of the problems and paradoxes that treating literary
tests as private property involves."
n55 Ernest .J. Weinrib,
The Idea of Private Law (Cambridge and London: Harvard University Press, 1995) at 12, 32.
Political Liberalism, supra note 4 at 10.
Briefer Restatement, supra note 4 at 3.
"Public Reason Revisited,"
supra note 4 at 770.
Political Liberalism, supra note 4 at 144.
n60 In Rawls' words, one respect in which citizens view themselves as free is
"that they regard themselves as self-authenticating sources of valid claims.
That is, they regard themselves as being entitled to make claims...having
weight of their own apart... for example, from duties and obligations owed to
Restatement, supra note 4 at 23.
"On Public Reason," (1994) 69 Chicago-Kent L. Rev. 669 at 670.
n62 On overlapping consensus, see
Political Liberalism, supra note 4 at 133-72, and
Restatement, supra note 4 at 32-38.
Political Liberalism, supra note 4 at 224.
Ibid. at 223.
Ibid. at 217.
n66 This is what Rawls calls the
"idea of reciprocity." See
ibid. at 16.
Ibid. at 214.
Ibid. at 215-16.
"Public Reason Revisited,"
supra note 4 at 771.
Political Liberalism, supra note 4 at 216.
n71 Peter Benson has applied the idea of public justification to private law, in
particular to contract ("The Idea of a Public Basis of Justification for Contract"
(1995) 33 Osgoode Hall L. J. 273 [Benson,
"Contract"]) and property ("The Idea of Property in Private Law" (2001, draft paper on file with author)).
Theory of Justice, supra note 1 at 508.
n73 As Ronald Dworkin puts it,
"no interpretation of the positive law can be successful unless it can justify,
broadly, the judicial decisions that have actually been reached." See Ronald Dworkin,
"The 1984 McCorkle Lecture: Law's Ambitions for Itself"
(1985) 71 Va. L. Rev. 173 at 178.
e.g. Marc A. Franklin,
"Replacing the Negligence Lottery: Compensation and Selective Reimbursement" (1967),
53 Virginia L. Rev. 774.
n75 As Weinrib argues,
supra note 55 at 36-42.
ibid. at 39.
n77 In Weinrib's words (ibid. at 31),
"a sophisticated legal system values its own coherence." Weinrib's account of the relationship between coherence and justification is
much more rigorous and complete than the cursory one presented here.
Supra note 73 at 176.
Theory of Justice, supra note 1 at 19.
Nicomachean Ethics, trans. by Martin Otswald (Indianapolis: Bobbs-Merrill Educational Publishing,
1983) Book V Chapter 3 at 118-99; Weinrib,
supra note 55 especially at 56-83.
ibid. Book V Chapter 4 at 120-21.
supra note 55 at 62-63.
Ibid. at 64.
n84 This distinction is one of the basic principles of the common law; Francis
Bohlen remarked that
"there is no distinction more deeply rooted in the common law and more
fundamental." See Francis Bohlen,
"The Moral Duty to Aid Others as a Basis of Tort Liability"
(1908) 56 U. Pa. L. Rev. 217 at 219.
supra note 71 at 315 identifies this idea as
"one fundamental principle that provides a basic point of view from which the
rights and duties that can arise between parties in private transactions are
construed and elaborated."
ibid., draws the same distinction; the corresponding terms in his account are public
political and public legal, or juridical, justification. I depart from this
terminology because it implies that there is nothing legal about a
justification that is multilateral in form and nothing political about one that
is bilateral in form. A justification is always legal when its context is the
interpretation and application of law, whether that law is distributional or
corrective, and also always political at least in the limited sense that it
concerns rules backed by state power. Thanks to Abraham Drassinower for a very
helpful discussion on this point.
supra note 55 at 72-75.
Ibid. Aristotle demonstrates the mutual irreducibility of distributive and
corrective justice by describing them as two different mathematical
relationships, geometrical and arithmetical respectively. He expresses the
irrelevance of distributive considerations to a problem of corrective justice
"It makes no difference whether a decent man has defrauded a bad man or vice
versa... The only difference the law considers is that brought about by the
damage: it treats the parties as equals and asks only whether one has done and
the other has suffered wrong, and whether one has done and the other has
suffered damage." See
supra note 80 at 120-21.
Supra note 5.
464 U.S. 417 (1984) at 429 [Sony].
n91 The argument is succinctly put in the Industry Canada-Competition Bureau's
Intellectual Property Enforcement Guidelines, online: Strategis.ic.gc.ca
"IP has unique characteristics that make it difficult for owners to physically
restrict access to it and, therefore, exercise their rights over it. The owner
of physical property can protect against its unauthorized use by taking
appropriate security measures, such as locking it away, but it is difficult, if
not impossible, for the creator of a work of art to prevent his or her property
from being copied once it has been shown or distributed. This is exacerbated
because IP, while often expensive to develop, is often easy and inexpensive to
n92 Barbara Friedman,
"From Deontology to Dialogue: The Cultural Consequences of
(1994) 13 Cardozo Arts & Ent. L.J. 157.
Ibid. at 176.
n94 Oliver Wendell Holmes, Jr.,
32 Harv. L.R. 40 (1918), reprinted in Richard A. Posner, ed.
The Essential Holmes (Chicago and London: University of Chicago Press, 1992) 180 at 182. Holmes
gives a gloss on his definition of a right as the hypostasis of a prophecy in a
letter to Frederick Pollock (also reprinted in
The Essential Holmes, at 179):
"we get up the empty substratum, a
right, to pretend to account for the fact that the courts will act in a certain way" [emphasis in original].
49 F. 3d 807 (1st Cir. 1995) [Lotus].
n96 The district court found that Borland had copied the menu command hierarchy,
and Borland did not contest this finding on appeal.
n97 17 U.S.C. (1976).
101 U.S. 99 (1879) [Baker], cited in
Lotus at 814.
982 F. 3d 807 (1st Cir. 1995), discussed in
Lotus at 814-15.
Lotus, supra note 95 sat 821 [emphasis added].
n101 For a discussion of Boudin J.'s proposed doctrine of privileged use and its
indebtedness to antitrust analysis, see David M. Maiorana,
"Comment: Privileged Use: Has Judge Boudin Suggested a Viable Means of
Copyright Protection for the Non-Literal Aspects of Computer Software in
Lotus Development Corp. v. Borland International"
(1996) 46 Am U. L. Rev. 149.
Lotus, supra note 95 at 819.
Ibid. at 819.
n104 For a discussion of the origin of this image, see text accompanying note 136,
n105 Speech Before the House of Commons by Thomas Macaulay (5 February 1841), cited
supra note 43 at note 23.
n106 U.S. Const., art. I,
§ 8, cl. 8.
"What Economists Can Tell Lawyers About Intellectual Property" (1986) 8 Research in Law and Economics: The Economics of Patents and
Copyrights (J. Palmer
& R. Zerbe, eds.) 19 at 21. Quoted in Gordon,
supra note 43 at 1350; Parchomovsky,
supra note 45 at 360.
n108 Alfred C. Yen,
"Restoring the Natural Law:
Copyright as Labor and Possession"
(1990) 51 Ohio State L.J. 517 at 542.
Supra note 92 at 159.
Ibid. at 179
n111 Found to be copyrightable
"artistic works" in
D.R.G. Inc. v. Datafile Ltd. et al. (1987), 18 C.P.R. 3d 538 (F.C.T.D.).
n112 Held to be copyrightable
"original literary works" in
U. & R. Tax Services Ltd. v. H. & R. Block Canada Inc. (1995), 62 C.P.R. (3d) 257 (F.C.T.D.).
Bleistein v. Donaldson Lithographing Company, 188 U.S. 239 at 251 (1903), Holmes J., [Bleistein]
n114 But see Gordon,
supra note 43 at 1345, discussion in footnote 8.
supra note 10.
supra note 108 at 537.
n117 Another term often used to express the same idea is
supra note 15 at 871
supra note 43 at 1431.
supra note 15 at 870.
n122 Part I of the
Constitution Act, 1982, being Schedule B to the
Canada Act 1982 (U.K.), 1982, c. 11.
R. v. Keegstra,  3 S.C.R. 697 at 804. The quotation comes from a discussion of the
three rationales that the jurisprudence has associated with section 2(b) in
McLachlin J.'s (as she then was) dissenting opinion. The analogy between
"expression" and the concept of free expression in constitutional law is not an exact one;
Charter guarantee comprises many communicative acts that would not be copyrightable.
It is undoubtedly the case, however, that any copyrightable expression would be
protected expression under s.2(b).
Attorney General of Quebec v. Irwin Toy,  1 S.C.R. 927;
58 D.L.R. (4th) 577.
Rocket v. Royal College of Dental Surgeons,  2 S.C.R. 232;
71 D.L.R. (4th) 68.
Supra note 17 at 252. To be precise, Lord Mansfield was talking here about the
reasons for common law protection of unpublished works, which both parties
agreed was clearly established. Lord Mansfield goes on to argue that the same
reasons hold after the author has published (ibid.).
"Industry evaluations of the comparative reliability of Unix systems have
repeatedly shown that Linux [developed through open collaboration] not only
out-performs commercial proprietary Unix versions for PCs in benchmarks, but is
renowned for its ability to run, undisturbed and uncomplaining, for months on
end in high-volume high-stress environments without crashing." See Eben Moglen,
Free Software and the Death of
Copyright" (1999), online:
n128 GNU General Public License version 2 (1991), online:
supra note 127.
"Violations of the GPL, LGPL, and GFDL," online: GNU
Bleistein, supra note 113 at 250.
Cheney Bros. v. Doris Silk Corporation, 35 F. 2d 279 (2d Cir 1929) at 279.
n133 It is for this reason that Kant, who is one of the sources of Waldron's
distinction between self-regarding and other-regarding freedom, considered
unauthorized publication to be wrongful. Immanuel Kant,
"On the Wrongfulness of Unauthorized Publication of Books" in
Practical Philosophy, trans. by Mary J. Gregor (Cambridge: Cambridge University Press, 1996) 23.
supra note 6 at 6.
n135 This is not to suggest, of course, that the distinction between a purely
internal thought and an idea that has been externalized through communication
corresponds to the distinction between the copyrightable and the
uncopyrightable. An idea, even after it has entered the realm of interpersonal
communication, is not copyrightable; only an individual's particular expression
of that idea is. See
ibid. at 38-44.
n136 See text accompanying note 104,
n137 I first encountered the
"barnacles" analogy in Professor William Eskridge's course on statutory interpretation at
the University of Toronto on 8-19 January 2001.
n138 The following anecdote, recorded in Steve Zeitlin's article,
supra note 3, also supports this point:
"[The] former director of the Folk Arts Program and the National Endowment for
the Arts remembers a conversation she had with [Woody] Guthrie years [after he
wrote the famous protest song
"Union Maid"]. 'I told Woody that I thought the chorus of
"Union Maid" had gone so completely into oral tradition that no one even knew where it came
from,' she recounted.
"It was part of the cultural landscape, no longer even associated with him. He
answered, 'If that were true, it would be the greatest honor of my life.'
Copyright Act, R.S.C. 1985, c. C-42, s.29. The equivalent of this provision in U.S. law is
the defence of fair use.
supra note 2.
supra note 72
Prepared: July 3, 2003 - 5:02:29 PM
Edited and Updated, July 4, 2003
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