9 Purpose of Copyright

The United States copyright law creates a balance between public interest and the rights of creators, as outlined in the Intellectual Property Clause of the Constitution. However, over time, copyright acts have increasingly favored creators’ rights, often at the expense of the public interest.

The Shift in Copyright Law

One of the interesting things about the United States copyright law is that the wording of the constitution sets up an inherent tension between two interests: the public interest and the rights of the creator.

The language of the Intellectual Property Clause, Article 1, Section 8 of the United States Constitution, posits that both interests can be served, though only if copyright is limited. However, the succession of copyright acts passed since the ratification of the constitution have steadily moved copyright law away from the public interest purpose of copyright. Copyright is simply a set of exclusive rights granted to creators or copyright holders which allow them to control distribution of their work.

The U.S. Constitution envisions copyright as a tradeoff, temporarily restricting the public’s ability to use creative works in order to make it economically sustainable to author works of knowledge and creativity. The current popular conception of copyright moves away from this in many cases, often granting more exclusivity than needed and not adequately considering the public interest.

In the United States, the current length of exclusive rights granted to the creator or to the individual or entity who purchases the rights is the life of the author plus an additional 70 years (and even longer for corporate authorship).

The Intellectual Property clause

The Intellectual Property clause grants Congress the power, “to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (U.S. Const.  art. I, § VIII, cl. 8). The key phrase here is “to promote the progress of…” The central idea being that this power is being granted to Congress to further the creation of new writing and inventions. It does not state something to the effect of, “To allow for exclusive control over their creations, by securing for authors and inventors the exclusive right to their respective writings and discoveries.”

The rights of creators are not placed first and foremost in the language of the clause. Yet, the 231 years since the Copyright act of 1790 have seen a succession of legislation which has treated copyright as if it were intended to do just that.

The Copyright Act of 1790

The Copyright Act of 1790 was the first to assign a number to the “limited times” portion of exclusive rights, in addition to describing what could be copyrighted. It granted the exclusive right of production, reproduction, and vending of maps, charts, and books for an initial term of 14 years after filing for copyright, with an option to renew for another 14 years thereafter.

If we look at copyright protection as living on a spectrum designed to balance greater societal good and protect individual interests, we see that the 1790 act was clearly written with both of these interests in mind. It may be useful here to discuss exactly how limiting exclusive rights is in the greater good, since such an idea is largely at odds with how many people conceive of copyright now. The public good is arguably served by making creative works and inventions publicly accessible. With more creative work and knowledge available, everyone has a better chance to learn, invent, and innovate much more effectively. All creation builds on the previous work of others—no work of art, no piece of creative writing, no mechanical wonder or medical advancement is entirely “new.”

Seeing Copyright Protection in Context

For example, let’s take a brand-new, best-selling novel. The writer may believe that they alone created this work. And indeed, they conceived of a story, of characters, typed out every word, rewrote and revised the manuscript until it was ready to be sent off to the publisher. However, none of those activities would have been possible if not established use of the novel as a medium of storytelling. Their use of first-, second-, or third-person perspective, the use of rising action, climax and resolution, how to write dialogue, all were done before. The author is simply taking the tools previously used and refined by generations of previous writers and using them to create their own story.

The same is true for a painter, a singer-songwriter, a sculptor, any inventor who uses tools to create some new, patentable device, or any scientist in a lab researching a medication or a vaccine. Every creator takes inspiration from and imitates the methods of creation that have come before. When Miguel Cervantes wrote Don Quixote, widely considered the first modern novel, his moment of creative achievement was merely an evolution in a long evolution of storytelling.

Moving back through time from Cervantes’ work, we pass through the era of the chivalric romance, through epic poems and plays, eventually reaching a time before the written word. Stories were shared and passed down orally, gathered around the flickering campfires of the Neolithic. All creation is made possible by societal traditions and institutions which record, remember and transmit knowledge from generation to generation.

“Culture” is a tiny word used to describe something gigantic: the collective artistic and intellectual achievement of a people, a region, a century. Nothing can be created wholly independent of the culture in which it is created. Think of writing a song on a guitar: would this have been possible without any knowledge of music, without a lifetime of listening to pop music on the radio, without knowing how to make the same four chords that have been used for decades? Of course not. The only way for a person to create something wholly new would be if that person was somehow raised without any knowledge whatsoever of any previous work in the area in which they are creating. Including how to use the required tools of creation.

It is perhaps easy to forget that exclusive copyright protections are a modern invention. We are used to them, having grown up with them. However, when compared to storytelling traditions dating back to and even before the Iliad and the Odyssey were written down 2,800 years ago. The system of exclusive creator control that we now see as a default is in fact not how cultures have propagated for the vast majority of human history.

With this in mind, then, let us return to the language of the Intellectual Property Clause:

“To 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.”

Given some historical context, the first part of the clause takes on added importance. The second part is an acknowledgement that exclusive rights for creators are important, but should also be balanced against the greater societal good. It should be limited. And the first codification of that, the Copyright Act of 1790, clearly had this in mind. However, subsequent copyright acts extended the term of protection, moving copyright law further from the societal good end of the spectrum and toward the creator’s interest end of the spectrum.

The current length of exclusive rights granted to the creator or to the individual or entity who purchases the rights is the life of the author plus an additional 70 years (and even longer for corporate authorship). Copyright law has moved beyond limited protection for individual creator rights toward a system which looks beyond the life of the creator.

Copyright Protection Continued

Life of the author plus 70 years does not simply protect the creator’s right to exclusively profit from the work. It then protects the interests of whoever owns that work after the creator’s death, whether a family member, estate holder, or corporate entity. It has been argued that this seems to conflict with some language from the Intellectual Property Clause of the Constitution. Some argue the duration of protection is at odds with promoting scientific and “useful arts” progress. The clause recognizes that authors and inventors should have the exclusive right to their respective writings, for a limited time. And while the most recent extension, granted by the 1998 Copyright Extension Act, still ensures protection is limited, meaning, the term of protection does end, the extension terms have moved that protection beyond their lifespan. Exclusive rights are now secured not only for an individual creator, but also for whatever interests then own those rights after the creator has died. Thus conceived, rights are simply a tradable commodity, not an acknowledgement to reward, for a while, creative effort.

There are a few extraordinary examples in which this has been wildly successful, such as the growth of the Walt Disney Company¹ into a $200 billion entertainment behemoth. Such examples are problematic in two ways, however. One, they’re the exception, not the rule. The vast majority of intellectual property owners do not benefit from continual extension of copyright protection. Two, they rely on a very specific definition of “value.” In this conception, value is simply the amount at which something can be bought and sold. This belief that the only value one can assign to creative works is monetary denies the importance of a larger, if less easily count-able, benefit to society of making creative work publicly available for use. It does not help matters much that dollar amounts and profit margins are easier to explain than the necessity of having a large body of publicly accessible work for use by subsequent generations of creators. Value with a dollar sign can be communicated with a bar graph. Understandings of creativity and culture and inherited knowledge, not so much.

What is “value,” here?

When most people think of value, it is simply easier for them to think in terms of what can be sold, and for how much. When talking about a patch of wild public land under consideration for development, the developer can simply state a number, and say, “We’ll buy this land from the state for X dollars, develop it, then sell the developed portions for more than X dollars.” Whereas, if one is trying to make an argument for the intangible benefits of keeping wild spaces undeveloped, that can take a bit of time and explaining. One needs to discuss wildlife diversity or about the importance of allowing people ready access to wild spaces, both of which probably strike people as more theoretical than anything. In this context, we can reflect on the two legal traditions in copyright law²: the utilitarian and the author’s rights traditions, mentioned in the Copyright Basics section. The utilitarian tradition holds that society benefits from the creation of ever-more works, and copyright law should encourage that. The author’s rights tradition holds that copyright is primarily intended to ensure integrity and attribution. The first places greater emphasis on the idea of intangible value than the second, which places greater emphasis on monetization.

Whose benefit?

The argument for the utilitarian perspective requires long discussions of how access to and use of existing creations can promote further creation, and of larger societal benefits rather than dollar amounts. The author’s rights argument is much simpler: people will be motivated to create works if they can be assured that they’ll be able to exclusively profit from those works.

Perhaps a study looking at money made from public domain works could help the utilitarian argument, providing something that can be easily shown in a pie chart. A 2016 article in Money Magazine reported that Shakespeare films have made well over $1 billion at the box office. The actual value of Shakespeare in film is actually much higher, writer Alicia Adamczyk notes, because she did not adjust the box office receipt totals for inflation. So, for example, while West Side Story is listed as pulling in $43.7 million, adjusted numbers from Box Office Mojo put the movie musical’s total gross at almost half a billion dollars today (Adamczyk, 2016). The list includes, at number one, Disney’s The Lion King, which made $987 million in 1994, equivalent to more than $1.8 billion today. While I wouldn’t agree with the idea that The Lion King is a direct adaptation of Hamlet, the shadow of the Bard is there. The king, who is killed by his brother, who takes his throne. The son who has to right the wrong. Other Disney adaptations are clearer-cut, such as 1989’s blockbuster The Little Mermaid, which did a cool half-billion dollars at the box office, adjusted for inflation. That was a clear, explicit adaptation of a public domain work.

As a footnote, it should be observed that it is often difficult to assess the similarity of plotlines, and where such similarities might be such that an argument for infringement could be made. For more information, see the Abstraction-Filtration-Comparison test, also known as the Altai Test, after the legal case for which it was developed.

This work is licensed under a Creative Commons Attribution 4.0 International License.

Works Cited

• Shakespeare Has Pulled In Over $1 Billion at the Box Office. (2016). Money. Retrieved October 21, 2021, from https://money.com/shakespeare-movies-box-office-billions.
• GovTrack.us. (2021). S. 505 — 105th Congress: Sonny Bono Copyright Term Extension Act. Retrieved from https://www.govtrack.us/congress/bills/105/s505.
• U.S. Const.  art. I, § VIII, cl. 8
• U.S. Copyright Act 1790, 1 Stat. 124 (1790)