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Ben on Promoting the Progress of Science and Property

By William Patry, Esq

Bill, the statement in your most recent post raised an issue that's long intrigued me:

"The Constitution is quite clear that Congress can only grant copyright to promote the progress of science, and thus this ?burden? exists from the inception of the rights, and follows those rights for the duration of the copyright."

The way you phrase this I think points to a rather fundamental divide among copyright lawyers (and interested others) who think about these issues. Of course, the Constitution provides that "[t]he Congress shall have power...[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." There has long been a debate whether the "[t]o promote the progress of science and useful arts" is merely nice precatory language, or whether it places a substantive limit, enforceable by the courts, on Congress' power. It seems to me that Eldred v. Ashcroft pretty well resolved this issue. As Justice Ginsburg wrote for the seven-justice majority:

"As we read the Framers? instruction, the Copyright Clause empowers Congress to determine the intellectual property regimes that, overall, in that body?s judgment, will serve the ends of the Clause."

In other words, within very broad limits, it's not for the courts to second-guess Congress' judgment about the best way "[t]o promote the progress of science and useful arts." I'm curious what you think about the practical import of your sentence I quoted above in light of Eldred. As you've made clear, there are many aspects of modern copyright law that you think are unwise, and that don't promote anything but the private financial interests of copyright owners. (Though, as I've argued previously, promoting their financial interest does promote the overall goals of copyright.) So what, if anything, do you think the courts should do about it? Do you think that in adjudicating individual copyright cases, judges should independently evaluate whether enforcing the plaintiff's statutory rights in that particular instance "promote[s] the progress of science and useful arts"? Seems to me that that would be a prescription for unpredictability and morass. It's often hard enough to figure out how the Copyright Act applies in a particular case; adding on a secondary inquiry whether a ruling in the case at bar would truly "promote the progress of science and useful arts" would impart to the courts an essentially legislative task.

I also think that a focus in a particular case on "[t]o promote the progress of science and useful arts," without proper focus on the overall system of copyright, will often just mean that the defendant is permitted to get away with blatant copyright infringement. To illustrate, here's an example. Let's say that in 2010 Studio A releases a very successful superhero movie, centered around an original set of superheroes. It announces that it will release a sequel in 2013. But in 2012, Studio B, hoping to cash in on Studio A's success, makes a movie based on the exact same superheroes -- a blatant rip-off that's a clear violation of Studio A's exclusive right to "prepare derivative works based upon the copyrighted work." But let's say Studio B's movie is actually really good, garnering rave reviews for taking Studio A's film "to the next level." Should Studio B be able to prevail in a copyright suit by arguing, "Our movie is a significant creative achievement, that added greatly to the world's cultural heritage. Enjoining our movie and imposing huge damages on us won't 'promote the progress of science and useful arts'; it will inhibit it."? I say no (and I'm pretty confident the law supports me). And that's because, while copyright law may prohibit release of infringing (though creative) works in particular instances, by conferring property rights on Studio A, it provided the incentive for it to spend hundreds of millions of dollars on its creation and production in the first place.

To wrap this up, I guess my big question is: What do you think the real, practical import of referring to copyright as a form of property really is? As I think I've shown in previous posts, people on all points of the copyright spectrum refer to copyright as "property"; of course that doesn't determine what any individual thinks is the proper scope of that property right. Do you believe refusing to refer to copyright as "property" would make a difference in individual cases, or is this largely an academic debate (not that there's anything wrong with that...).

Full post as published by Moral Panics and the Copyright Wars on September 11, 2009 (boomark / email).