1999 B.C. Intell. Prop. & Tech. F. 060505

Is Copyright Ethical? An Examination of the Theories, Laws and Practices Regarding the Private Ownership of Intellectual Work in the United States

Shelly Warwick fnA

June 4-5, 1999

I. Introduction

The Constitution of the United States empowers Congress to secure for authors and inventors the exclusive rights to their writings and discoveries for a limited time in order to promote the progress of science and the useful arts (Article 1, §8). In revising the Copyright Act in 1909 Congress stated that the rights of copyright holders were solely created by government grant and had no other basis (H.R. REP. No. 2222). It would seem then that copyright law was created by the government as an instrument of policy. Policy usually is based on a choice of preferred outcomes, and that choice may be based on considerations other than the moral or the ethical. Given then that copyright law expresses policy why does the software industry decry the lack of ethics of individuals and nations who pirate computer programs, and why do database producers cry unfair when the public domain material in their databases is copied by others?

This paper examines the relationship between intellectual property rights and ethics, focusing for the most part on copyright. The focus is on two key questions : 1) what is the relationship between ethics and copyright law and practice in the United States; and, 2) is the concept of private ownership of intellectual property inherently ethical? These questions are important because access to an overwhelming number of the elements of daily life is now controlled by intellectual property law. Is non-conformance with these laws a calculated risk against being caught, equivalent to parking at a meter beyond the specified time period, or is it a matter of ethics?

To provide a basis for this examination some varying constructions of rights, property and intellectual property will be presented along with a brief history of copyright in the United States. The copyright legislation passed by the 105 th Congress will be discussed as well as some current international aspects of intellectual property. Then, with both theory and practice at hand, we will proceed to the ethical examination. Sadly we will be unable to reach a conclusion on whether all aspects of intellectual property are unethical, but will have found that copyright in the United States is an economic regime which pays homage to ethics only when it wishes to invoke the a higher ground than economic damages for reasons to obey copyright law.

II. What Are Rights and How Do They Arise?

An excellent summary of various approaches to rights is provided by Waldron (1984) who elaborates rights theories as being of two kinds, those based on some perceived intrinsic quality (natural rights theories) or on some value that a society wishes to achieve (utilitarian theories). He argues that rights cannot be discussed without considering the topic of political morality, which may be based on rights, duty or goals. While Waldron thinks that rights can exist outside of positive law, he acknowledges that much of the debate on the basis of rights has incurred within that framework. He points to Bentham as the key liberal theorist of natural rights, who derived all rights from the right of subsistence and viewed rights as the child of law through the marketplace. Most modern jurists recognize that the legal system includes rules that allow individuals to harm others without redress, and therefore reject the meta-theory of liberalism, accepting that “ . . . to the extent others have legal liberties, one has no security” (Singer, 1969 p. 985).

Dworkin views rights as trumps “ . . over some background justification for political decisions that states a goal for the community as a whole" (1984, p. 164). He goes on to state that the concept of rights is needed in a political theory only when some decision that injures some people finds prima-facie support in the claim that it will make the community as a whole better off. Dworkin view rights as the legal means for achieving the values of a society.

Perhaps one of the most influential refutation of liberalism and clear discussion of rights, has been provided by Wesley Hohfeld (Hohfeld, 1923) who explored the basic contractions within legal and political theory and caused jurists to realize that all legal decisions were not based on an inherent logic of rights, but on politics, morality and the competing goals of liberty and security. In short the modern view of rights is that they are created by law and stem from no “natural” source. Rawls’ (1972) theory of justice as fairness is in accord with this thinking, but adds the concept of fairness and the priority of liberty to the fashioning of positive law. While many modern thinkers have rejected the assertion of liberal theorists, and of Locke, Lock’s position that certain rights are natural (exist prior to the state and whether or not the state recognizes them) still has a profound resonance in most discussions of rights, and had a major influence on the founding of the United States. The Declaration of Independence is a clear statement of the liberal philosophy, asserting that rights stem not from a sovereign or state, but from a creator (which would make them natural and moral), and that they are inalienable (unable to be given away or transferred) which means that the state can not subsume these rights.

III. Property Rights

The traditional legal basis for property is well defined and discussed by Cohen (1935) who defines property rights as the relationship between individuals in reference to things. He asserts that the owners of all revenue producing property are granted the power to tax the future of social product. This power, along with the power to command the service of a large number of individuals who are not economically independent is viewed as the basis for political sovereignty. Four approaches to the development of private property are presented: 1) Occupation, where rights develop based on discovery or tenancy; 2) Labor, where rights accrue through use or work; 3) Personality, or the need for a sphere for an individual to exercise their right to act as a free personality; and 4) Economic, which views private property as the means to maximize productivity. However, Cohen point out that private ownership often encourages the sacrifice of long-term social interests for immediate individual profit.

In discussing occupancy, Cohen observes that no matter how property was obtained, the longer one holds it the stronger the expectation to continue to do so, and that the law finds value in protecting legitimate expectations. In terms of the self-evident nature of property through labor, Cohen comments that economic goods are never the result of one person’s work and that consideration must be given even to those that “guarded the peace while work was being done.” Cohen gives little value to those who derive the right of property from the right of an individual to act as a free personality and not depend on others for their material goods. Cohen characterizes the economic basis of private property as a mean to maximize productivity, but comments that this often results in an emphasize on short-term gains and a sacrifice of social interests to profits, and perhaps less productivity in the long-term. In short, there appears to be a common sense basis for all approaches to property, and at the same time a common sense limitation. He concludes “The issue before thoughtful people is therefore not the maintenance or abolition of private property, but the determination of the precise lines along which private enterprise must be given free scope and where it must be restricted in the interests of the common good” (Cohen, 1985, p. 304).

Another detailed discussion of property and rights is presented by (Waldron, 1988) who poses two questions 1) what individual interests are served by the existence of private property? and 2) are any of these interests so important from a moral point of that they justify a government duty to protect them?. Waldron examines utilitarian arguments for private property, which are based on the concept that society will benefit more if material resources are controlled by individuals than if they were controlled by the state or the community as a whole. He points two defects in this approach, it treats all human desires and interests as equal, even if they cause pain and suffering to others, and that they care little about how the sum of happiness is achieved, and have no concern with justice or equality. “The owner of a resource is simply the individual whose determination as to the use of the resource is taken as final in a system of this kind.” (Waldron, 1988, p. 35).

A major proponent of the utilitarian nature of property rights is Demsetz who define a property owner as one who “. . .posses the consent of fellowmen to allow him to act in particular ways” (Demsetz, 1967, p. 347). Properrty rights are defined as rights that specify how persons may be benefited and harmed, and who must pay to modify the actions taken by various persons and are put forth as a means of achieving a greater internalization of externalities, or a means of bringing new factors into the equation and as they arise along with the emergence of new benefits or harmful effects. Coase, whose thinking is at the core of much of Demsezt’s theories, views rights as a factor of production, the cost of which must be factored into any costing process and states that while it is desirable that “the only actions performed were those in which what was gained was worth more than what was lost” and that the choice of social arrangement, and individual decisions may lead to changes which improve some decisions but worsen others (Coase, 1960, p. 369)

From these various points of view on the origin and purpose of private property and the control of scare resources, it can be seen that the state has the role of adopting an approach for rulemaking which can be to: 1) support the expectations of those who have property; 2) follow an over-riding principle; or 3) strive to achieve a desired end (policy). While it would be convenient if each state followed a single course, we’ll find as we examine the history of copyright in the United States, that the government tends to utilize all three approaches when making rules, including those concerning intellectual property and copyright.

III. Theories of Intellectual Property and Copyright

Intellectual property is a term that has recently come into extensive use, and is often used without definition (Brown and Rushing, 1990; Miller, 1979), or defined as that which is covered by patent, copyright or trademarks (Rozek, 1990). Abbott (1990, p. 312) states that intellectual property rights are ". . . the legally protected property interests individuals possess in the fruits of their intellectual endeavors" while Sherwood (1990) views intellectual property as a compound of the results of private activity (ideas, inventions and creative expression) and the public willingness to bestow the status of property on these results.

Most scholars accept that copyright is a bundle of property rights that produce/protect a limited monopoly (Ringer and Gitlin., 1965). The basis for these rights, however, is hotly debated, as is the purpose of the rights, and what protection should (or should not) be provided intellectual property in the future. Two views dominant copyright theory. The first approach views copyright as a “natural” right either based on labor, echoing Locke, or personality, echoing Hegel. The second approach treats copyright as a state policy to achieve set goals (such as an increased creativity, progress in the useful arts, an orderly market for products of mind, a means for expanding foreign trade, or the like). The first approach, the natural right of an author to the fruits of his or her labor have been asserted since the dawn of copyright in England (Birrell, 1899; Lowndes, 1840; Warburton, 1974) and is still asserted by those who feel labor should be a key element in determining the control of works (Hicks, 1987; Ginsburg, 1990; Goldstein, 1992). Equally voracious are those who feel copyright is to promote the useful arts or public access to information (Litman, 1992, Patterson and Lindberg, 1991; Samuelson, 1997) and those who see it as a means to insure an orderly market for works of the mind (Demsetz, 1967; (Gordon, 1990; Landes and Posner., 1989). It might be noted here that almost no one feels that copyright as currently formulated in the United States is adequate to whatever role they assign it. From those proclaims that information wants to be free and that copyright will die a natural death due to electronic communication (Barlow, 1994; Kost, 1987; Schlachter, 1996), to strong protectionists, (Ginsburg, 1990; Goldstein, 1992}, copyright law is contradictory and needs focus.

Branscomb (1984)identifies a basic conflict in U.S. copyright law in that it addresses the ideal of shared resources while practicing the principles of management of scarcity through the choices of the marketplace, while Patterson (1984) castigates it for lack of a fundamental principle. Though some theorists like Gordon (Gordon, 1989) believe copyright is consistent with other laws of property in its provision and protection of rights, others like Hettinger (1993) question every assumption about copyright, citing a reward for labor as a choice of social policy. Hettinger, refers to copyrights, patents, and trade secrets as intellectual objects and points to the key difference between intellectual objects and real objects, which is that intellectual objects do not dissipate with use and can be used by more than one person at the same time. Hettinger also sees a contradiction in a political system that places value on freedom of expression and then has intellectual property laws which makes ideas and expression private. While he acknowledges that the concept that a person is entitled to fruit of her labor is a most powerful idea, he states that most intellectual labor is built on the labor of others which would make it difficult to assign rights to a specific individual. In recapping Locke’s theory of ownership, which is based upon an individual’s ownership of his or her own body and the resultant ownership of what the body makes, Hettinger points to the need to distinguish between what is attributable to the object and to the body. Intellectual products, states Hettinger, are fundamentally social products and there is no reason for last contributor to get all the rewards. Hettinger puts forth the concept that an individual is entitled to rewards for labor is a myth, and that rewarding labor may be a social policy, but is not a moral right. Hettinger also states that there is a gap between saying that one has the right to use the fruits of his or her labor and the claim that one should receive whatever the market will bear. He argues that if property rights in the thing created were always the reward for labor parents would deserve property rights in their children even when the children achieve adulthood. Hettinger also refutes the utilitarian argument that intellectual property laws are necessary for competition, and claims that it slows down the diffusion of ideas in the name of promoting diffusion. He further questions whether the current intellectual property laws have actually increased either the amount of intellectual property available or its use. Hettinger (p. 35) raises the central ethical question as to “why one person should have the exclusive right to possess and use something which all people could possess and use concurrently?”

Chief among those arguing the economic basis of copyright are Landes and Posner who view copyright law as a mean of promoting efficient allocation of resources and see “striking the correct balance between access and incentives is the central problem of copyright law” (Landes and Posner, 1989, p. 326). They believe too much protection will raise the cost of creation, while too little will provide little incentive. They state that the “optional amount of copyright protection is greater for classes of work that are more valuable socially.” A refutation of Landes and Posner is offered by Palmer (1990) who bases much of his arguments on the economic theories of Coase and Demsetz and states, in short, that the marketplace and individual arrangements, such as licenses and trade agreements, would allow authors to profit from their intellectual property without the need for copyright. Palmer (1990, p. 279) takes the position often adopted by advocates of expanded fair use that “The central element in the spontaneous emergence of property rights is scarcity... but that copyright depends not on scarcity but on law.”

Another approach to copyright has been to protect an authors moral rights, or rights of paternity or attribution (the rights of the author to be identified as the creator of the work) and rights of integrity (which prevent a work from being altered without the author’s permission) (Jacobs, 1993; Nimmer, 1995). The crucial difference in these approaches is that property or economic rights can be sold or assigned while moral rights remain with the author even if the economic rights are conveyed to others. The United States and England has long been associated with economic rights while France and the Scandinavian countries with moral rights. Once it understood that copyright in the United States pertains only to economic rights its nature as a utilitarian policy and not an ethical construct become clear.

V. History of Copyright in the United States

The legal basis for copyright in the United States is Article 1, Section 8 of the Constitution which empowers Congress “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.” The model for first Copyright Act, that of 1790, was the English Statue of Anne which is generally recognized as intended to regulate trade rather than recognize author’s rights or promote learning (Patterson, 1968; Rose, 1993). Copyright in England and the rest of Europe was essentially based on the assertion that the sovereign had the rights to all things within his domain and the rights of others were solely based on the pleasure of the crown (Rose, 1993). The Constitution, by reserving for citizens all rights not explicitly granted to Congress or the states raised the people to the role of sovereign. The limited nature of the rights conferred by The 1790 Act, which granted authors the rights to print, reprint, publish and vend their writings for 14 years, makes more sense when it is understood that the rights not granted to authors are reserved to the people as sovereign. Transformative or productive uses of the protected works, such as translations, abridgements and derivations, were not prohibited as these were not considered copies, but uses of the work (Patterson, 1968). Copyright protection was only granted to citizens of the United States..

United States copyright law has been consistently revised to embrace new media and to provide a wider range of rights to copyrightholders, usually in reaction to copying not prohibited the current law but deemed unjust or unethical by the Courts or Congress. For example, the right to create derivative works, including translations, was not granted authors until after Harriet Beecher Stowe had failed in an action against a German translator of Uncle Tom’s Cabin ( Stowe v. Thomas). Protection to works created by citizens of nations was granted in 1891, and then with the provision that the work be printed in the United States. The United States recognized, if a bit late, the need for reciprocal international copyright and became a founding member of the Universal Copyright Convention (UCC) in 1951, then a signatory to the Berne Convention in 1989. The growing importance of copyright within international trade and the tendency to try to force intellectual products into framework constructed for consumable goods is exhibited by the Trade Related Aspects of Intellectual Property (TRIPs) agreement of the General Agreement of Tariffs and Trade which the United States adopted in 1994.

The last major revision of copyright law took place in 1976 after over 20 years of studies and debate (Henry, 1976). The intent of Congress was to create a law so inclusive that as new media arose the works created in them would automatically be eligible for copyright protection without the necessity of revising copyright law. At the time this law was crafted the photocopier was the major new technology and computers were things that took up huge spaces and were only owned by large organizations.

Current copyright law, as per the Copyright Act of 1976 as amended, protects all “original works of authorship fixed in a tangible medium of expression.” Copyright holders have the exclusive right to reproduce, distribute, sell or lease works, and to prepare derivative works, and to publicly perform literary, musical, dramatic and choreographic works, pantomimes, motions pictures and other audio visual works, as well as to display these and pictorial, graphic or sculptural works, including individual images of a motion picture or other audiovisual work (U.S.C. 17 §106). In 1980 software was deemed a type of copyrightable work, and in 1984 the designs for semiconductors (computer chips) were given sui generis protection.

In 1997 and 1998 the 105 th Congress passed three major copyright laws, the No Electronic Theft (NET) Act, the Sonny Bono Term Extension Act (SBCTEA) and the Digital Millennium Copyright Act (DMCA). The NET Act extended the concept of financial gain to receipt of anything of value and made willful infringement of works having a total value of more than $1,000 a criminal offense, even if the infringer did not profit. Prior to this act, copyright infringement was a civil matter. The Sonny Bono Term Extension Act extended the term of copyright to match that of the European Union, extending the term of copyright by 20 years, so that the basic term of copyright is now the life of the author plus 70 years. This act was retroactive, extending the term of works already created. Both The NET and SBCTEA clearly indicate that copyright in the United States is becoming more a tool for securing property interests than a mode of encouraging new works, especially since the latter provides an additional term of protection for works already created. The DMCA was passed to implement the1996 Word Intellectual Property treaties, making it a crime to circumvent technological protections put in place by the copyright owner. This provision takes effect two years after the enactment of the DMCA, during which period the Librarian of Congress is to conduct a rulemaking proceeding to determine appropriate exceptions to the prohibition (17 U.S.C. §1201). There is no explicit exemption for fair use, and, therefore someone who disabled protection to access the information would be committing a criminal act even if the use of the information would be fair. The impact of this provision can best be appreciated if one remembers that until the No Electronic Theft Act of 1997 infringement of copyright was a civil not criminal matter. The worst penalty an infringer could expect would be to be told to stop making copies and to pay a fine. Under the new law, a person who evades a technological protection could go to jail. This law was very strongly backed by content providers, including print publishers. In a similar vein, this law makes it a criminal act to manufacturer or import any device that has as its main purpose the circumvention of technological protection. The DMCA also provides penalties for changing or deleting Copyright Management Information (CMI) when providing a copy of a work, provides some protection to internet service providers against copyright liability, makes some technical corrections to copyright law and mandates the Librarian of Congress to begin a rule making process for the use of copyright protected works in distance learning environments.

These most recent copyright laws can perhaps best be understood in an international framework. The European Union, which includes Britain, recently adopted an Intellectual Property Directive that established the life of the author plus 70 years as the basic period of protection and in December of 1996 two World Intellectual Property Organization (WIPO) treaties were adopted in Geneva which called for, among other things, the protection of technological safeguards used by copyrightholders (WIPO, 1996). The push for this, and even more stringent measures, was spearheaded by the United States (Samuelson, 1997).

What Copyright Doesn’t Cover

Copyright protection is not provided to ideas, procedures, processes, systems, method of operation, concept, principle, discovery, short phrases, fact or works created by the United States government. There are a number of exceptions to the rights of copyright holders, most of which are applicable to a limited class of actors, such as libraries, educational institutions, cable television systems and radio stations. Two exemptions are available to the general public, the right of first sale and fair use. The right of first sale allows a person who has purchased a copy of a work protected by copyright to lend, sell or otherwise transfer that copy of the work to someone else. The fair use exemption is more complex in that it allows copying for purposes such as criticism, comment, news reporting, teaching, scholarship or research, with whether the use is fair to be determined based on: (1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work (U.S.C. 17 §107). While fair use is generally perceived as establishing rights of use, or as a limitation on the rights of a copyright holder, Patterson (1992) contends that it has actually broaden the rights of the copyright holder and that prior to the 1909 Act fair use did not apply to consumers because fair use was a defense for infringement and infringement only applied to those who made commercial use of the work, not individual use.

VI. Is Copyright Ethical?

The ethics of copyright can be approached in two ways: (1) If, as Hettinger suggests, every creator stands on the shoulders of giants what is the essential morality in allowing the last contributor to reap the full reward or to have the right to prevent others from building on her contribution; and (2) If, as postulated by Locke, an individual is entitled to what he or she creates, what are the ethics of limiting a creators rights in regards to his or her creation? Theoretically copyright law in the United States takes the first view, stating that authors have no natural right in their creation but only the rights that the state has conferred by reason of policy to encourage the creation of new works (H.R. REP. No. 2222). This approach assumes that the content of products of mind (not the objects in which they are embedded) belong to society as a whole, but that society would benefit more if more such products were available, and that in order to encourage production the creator of such products should be given rights that will allow him or her to reap some economic benefits from the creation. As Branscomb (1984) observed this is encouraging access by legislating scarcity.

Earlier United States copyright law was better aligned with the encouragement theory and the ethical position that creative works belonged to society as a whole. Only the exact copying of a work was prohibited, not new works based on a previous work. Subsequent authors were free to adapt novels to the stage, abridge scholarly works for the masses, and translate works into other languages without paying a license fee to the creator or to whom ever the creator had transferred his or her copyright. However as copyright law has expanded to grant creators more rights the law has all but abandoned the concept of allowing, let alone encouraging, transformative or productive use. Copyright no longer has a consistent theory, let alone an ethical position. It has become what is often called an equitable rule of reason, which attempts to balance the rights of authors with the rights of users. It is often not clear whether this balance is to be obtained by granting rights via law or by recognizing the intrinsic rights of each. However, if copyright is indeed only a matter of law there should be no rights other than those granted by the law. What both creators and users then have are expectations, but, as Cohen (1985) observed, the law finds value in protecting legitimate expectations.

But whose expectations are legitimate? The creator who envisions riches for building a better mouse-trap or the users who expect to be able to use the designs of that mouse trap to build an even better one or learn about how mice can be trapped? If both expectations are legitimate we have a dilemma, but is it an ethical dilemma or a policy dilemma? Copyright law avoids taking an ethical position or even deciding which group holds the highest trump, but endeavors to effect a compromise between the expectations of creators and users by creating a period where the expectations of the creators are recognized by law (the period of copyright protection) followed by a period where the expectations of users are recognized (when a work enters the public domain.). This perhaps was an equitable rule of reason when the term of copyright was 14 years with a possible renewal of another 14 years (as provided in the Copyright Act of 1790) but is it as equitable now that copyright exists for the life of the author plus 70 years? Is it even consistent with encouragement theory to extend the term of protection for works already created?

One could argue that the continual extension of the term of copyright protection and the expansion of authors’ rights indicates a shift of ethical perceptions in the United States and that the “right” of creators to benefit from their work is now perceived as more legitimate. Or one could argue that copyright has lost whatever mooring it once had to either ethics or theory and is a law unduly influenced by those who would benefit most from stronger protection. For example, many of those who argued for an expanded term of copyright often spoke of literary work as an author’s legacy to their family, (echoing the arguments of the Stationer’s Company who pointed to the widows and orphans of authors as they lobbied for perpetual copyright (Rose, 1993). What drove term expansion, however, were the interests of corporate copyrightholders such as Walt Disney who feared the entry of Mickey Mouse into the public domain (Litman, 1994).

Given the strong connection between a creator and her work (especially in literary genre) it is difficult to assert that granting no rights to the creator is ethical. Likewise given the fact that almost all works, including those that are literary, owe a debt to the sum of works that have gone before, it is difficult to assert that granting exclusive perpetual rights in a work to a creator is ethical. However, the arguments for personal ownership and control of intellectual works are appealing, since they accords with concept of ownership as awarded to physical works, since original works can satisfy all four approaches to private property: occupancy, labor, personality and a means to an economic end. However intellectual works are different from physical objects. And one of the problems of the current copyright system is that it was created at a time when intellectual property was easily fixed in real objects so it was not necessary to confront the difference between the container and the content. This is no longer the case with the advent of technologies that allow intellectual works to be easily copied and shifted from media to media. Not only is the enforcement of copyright more difficult but the non-consumable and non-exclusive nature of intellectual property becomes evident, along with its low marginal cost of reproduction (Hettinger, 1993). Intellectual property laws tend to stuff creative works back into containers, creating an artificial scarcity (Branscomb, 1984)

Copyright, in as much as it attempts to balance the interests of creators and society could be considered based on ethics. However, while such ethical considerations might have been present in the minds of those who crafted copyright law they were never stated either in the Constitution or in the law. This discussion becomes more complex when applied to factual works., Copyright has never protected facts or ideas. It only protects expression. Therefore a scholar who has labored for years to research a subject such as Lincoln’s death may find his work utilized without credit and have no recourse under law ( Eisenschiml v. Fawcett Pub ). As the judge observed “Whatever we may think of the ethics of Millard [the second author] in utilizing various portions of plaintiff's [first author] works with only a scant credit reference, or the ethics of the defendant [the publisher] in publishing the article after first eliminating the credit reference, we conclude, in view of the findings we must hold there was not a sufficient copying to amount to an infringement.” In short, plagiarism may be unethical but it is not illegal if it can be justified by fair use, which does not specify that the source of work used by must be cited.

If copyright does not protect facts it also does not protect labor. While many circuit courts incorrectly interpreted the 1909 Copyright Act as protecting compilations of information based on labor this was clearly found unconstitutional by the Supreme Court in Feist v. Rural Telephone , which ruled that unoriginal arrangements of facts had no more protection than a single fact. In light of this decision there has been a major effort by information compilers and database developers to have a law passed in the United States that would protect compilations of fact based on labor and investment. The current proposal (H.R. 354, The Collections of Information Privacy Act) would prohibit even legitimate purchasers and subscribers of compilations from using substantial amounts of data in the resource. It would also allow renewal of the protection as long as the compilation received new inputs of either labor or investment. This protection mimics protection already granted in the European Union by the EU Database Directive (European Parliament 1996). This new legislation would not protect the labor of original researchers who discover and interpret facts, since works like articles and monographs would still be protected by copyright as it is now constituted. What would be protected is the labor and investment of those who compiled facts, often from the articles of original researches. While it is tempting to discuss at length the effect such legislation would have on scholarly research and the cost of education, we will merely state that we’ve done this elsewhere (Warwick 1998) and focus here on the ethical question. Where is the ethics of stating that intellectual creations are the sum of the labor of many and belongs to society, then having a policy of encouraging creativity by offering creators of original work protection only for their expression, while providing additional protections to those who produce unoriginal works clearly based on the work of others? If more socially valuable works should be given more protection (Landes and Posner, 1989) then why should a creator of a phone directory receive more protection than the creator of a prize-winning science article? How is social value being measured? While some may argue that database protection is lesser protection than copyright protection, there is nothing in the proposed United States legislation or the EU Directive that prohibits works from being protected under both regimes, in fact this is anticipated.

As stated before, the United States has traditionally protected the economic rights of creators, not their moral rights. However in 1990 authors of visual works were granted the rights of attribution and integrity. These rights were designated as being separate from copyright and for a term that expired with the death of the creator. However, unlike moral rights in France, they can be waived. It is difficult from an ethical viewpoint it is difficult to understand how if visual artists have moral rights and not creators in other media, such as text or music? Is it perhaps the fact that an original painting or sculpture are usually unique — one of a kind items that lose value (artist and financial) in reproduction so that the original needs to be preserved s created? If so, then an underlying value of copyright law would be that works which retain value through reproduction should receive less protection. In that case factual works should receive the least amount of production.

Once moral rights are recognized as distinct from economic rights a possible way out of the copyright maze presents itself. One could declare that society owns the economic rights of creative works while the author retains the moral rights. Then society, in the form of the United States government would be taking a consistent ethical position even if it choose to craft a policy of providing an inducement to create more works by providing economic incentives in the form of economic copyright protection. Though if one was going to analyze copyright as an inducement to create more works it would be sensible to find out how many more works, if any, were created only because a longer period of copyright protection was available. Surely there are other, and perhaps more effective, means to induce the protection of creative works. However there is a constitutional problem. While Congress is empowered to “promote the progress of science and the useful arts” this empowerment requires doing so by “securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Many claim this limits the ability of Congress to provide other means of encouragement. However, the Constitution does not state whether the exclusive rights are moral or economic. Nor does it distinguish between the economic rights of the creators and of those to whom the rights have been transferred.

Copyright clearly illustrates Waldron’s (1988) contention that the utilitarian arguments for private property are defective in that they treat all interests as equal, even if pain and suffering is caused to others. The interests of the very few members of society who are authors and publishers are weighed evenly with the interests of the vast body of citizens who are not creators. The interests of a few publisher who would not make an additional 5% profit unless additional protections are provided is often weighted equally with those of thousands of students who will not do as well as their classmates because they would not be able to afford access to information if additional protection raised the cost of research. The issue of group rights to intellectual property has also been raised in regard to the cultural symbols and folklore of Native Americans and indigenous peoples (Dougherty, 1998; Farley, 1997) and in biological patents (Shiva, 1993, 1990; Ritchie, Dawkins and Vallianatos, 1996).

´The ethics of copyright have also been raised when the rights granted by copyright have come in to conflict with those of freedom of speech, freedom of the press and privacy. For example Martin Luther King Jr.’s “I Have A Dream” speech was ruled to be in the public domain ( Estate Of Martin Luther King, Jr., Inc., v. CBS, Inc .) and the unlicensed use of Zapurder’s copyright video of President John F. Kennedy’s assassination permitted based on the public interest in the topic ( Time Inc. v.. Bernard Geis Assoc. Inc ). Conversely J..D. Salinger was found to have the right to limit the use of his unpublished letter, and their use a scholarly biography was found not to be fair, though Salinger had donated those letters to a library for study ( Salinger v. Random House, Inc .). This prompted an amendment to the Copyright Act which expressly extended fair use to unpublished works. Are these contortions and amendments of copyright law an attempt to fine tune public policy or to create an ethical law. Probably some of both.

An other area where the rights granted by United States copyright law are raised to the area of ethics rather than policy are in the international arena. The copying of intellectual property in countries that have not declared this illegal has been branded “piracy” and a great effort has been made to export United States copyright law to the People’s Republic of China, Taiwan and Latin America (Beam 1995; Lara, 1998; Slotkin, 1996; Yeh, 1996) even where the tradition of copying is part of recognizing established values (Alford, 1995). While it is undoubtedly true that producers and distributors of intellectual property who are citizens of the United States suffer economic harm though loss of sales in those countries that do not stringently protect or enforce intellectual property rights, one wonders how that which is stated as a policy choice in the United States can be raised to a level of ethics when applied to the action of citizens of other countries. The moral and ethical pose often adopted by the United States in the international copyright arena is perhaps ironic, considering that for almost half its existence the United States was a major intellectual property pirate, printing literary and scholarly works with little or no compensation to their British creators. Indeed in the 1800s protecting the copyright of non United States nationals was viewed by average citizen as an undesirable policy and one that would drive up the price of books (Putnam 1891a, 1891b; 1891c).

Ethics are often raised as well in regard to copying software. The Software Publisher’s Association (SPA), which merged with the Information Industry Association (IIA) in January of 1999 to form the Software & Information Industry Association (SIIA), offers a guide on Software Use and the Law (SPA 1997) which states it is intended to provide “a basic understanding of the issues involved in ethical software use.” The same document declares that it is “wrong” for a school to duplicate software. While copying software except for backup or archival purposes is clearly illegal does this automatically make such actions unethical? Unless one considers all laws ethical, and that breaking any law to be unethical, illegality and unethicality can not be automatically equated. One also might question whether the efforts by the SIIA and its predecessor organizations to have Congress enact legislation that provides greater rights to creators (and their assigns) than to users were prompted by an ethical position or by a desire for greater profits.

VII. Summary

United States copyright law is theoretically based on policy created within a framework that valued the interests of the people as a whole over the interests of an individual creators. The original framework is being slowly dismantled to give more weight to the interests of individual creators. This shift in policy is often defended based on the ethics of allowing a creator control over her work. However, this ethical position does not generally extend to moral rights. Moral rights, of course, only benefit creators, not publishers or distributors. This calls into question whether the extension of rights is based on an ethical position or in reaction to pressures exerted by those whose profits depend on the protections granted by copyright. Copyright was created as policy not an ethical construct, but many treat the law as if it is, or should be, such a construct. Copyright law as currently constituted does not appear to have a consistent ethical basis nor to provide a consistent policy to promote learning and the useful arts.


[fnA]Shelly Warwick
Graduate School of Library and Information Studies
Queens College
65-30 Kissena Boulevard
Flushing, NY 11367
(718) 997-3757 (voice) . . .(718) 997-3797 (fax) . . .Shelly_Warwick@qc.edu

Abbott, A.F.: 1990, “Developing A Framework For Intellectual Property To Advance Innovation,” In R. W. Rushing & C. G. Brown (Eds.), Intellectual Property Rights In Science, Technology, And Economic Performance: International Comparisons , 32-46, (Westview Press, Boulder Co.).

Alford, W.: 1995. To Steal a Book is an Elegant Offense: Intellectual Property Law in Chinese Civilization (Stanford University, Stanford).

Barlow, J.P.:1994, “ The Economy Of Ideas: A Framework For Rethinking Patents And Copyrights In The Digital Age (Everything You Know About Intellectual Property Is Wrong)”, Wired, March , 85-129.

Beam, A.: 1995, “Piracy of American Intellectual Property in China,” Detroit College of Law Journal of International Law and Practice , vol. 4, 335-365.

Birrell, A.:1899, “ Seven Lectures On The Law And History Of Copyright In Books (Putnam., New York).

Branscomb, A.W.:1984, The Accommodation Of Intellectual Property Law To The Introduction Of New Technologies . (433-9810.0 ed.). (Office of Technology Assessment of the U.S. Congress, Washington, D.C.)

Brown, C.G., & Rushing, F.W.:1990, “Intellectual property rights in the 1990s: Problems and solutions,” In F. W. Rushing & C. G. Brown (Eds.), Intellectual Property Rights In Science, Technology, and Economic Performance: International Comparisons , pp. 32-46.(Westview, Boulder, Co.).

Coase, R.H.:1960, “The Problem of Social Cost,” The Journal of Law & Economics , 3, 1-44.

Cohen, F.:1935, “Transcendental Nonsense and the Functional Approach,” Columbia Law Review, 35(6), 809-849.

Copyright Act of 1790.

Copyright Act of 1909.

Copyright Act of 1976.

Demsetz, H.:1967, “Toward A Theory Of Property Rights”, The American Economic Review, 57 (2) , 347-359.

Digital Millennium Copyright Act. (1998). P.L. 105-304.

Dougherty, T.: 1998, “Group Rights to Cultural Survival: Intellectual Property in Native American Cultural Symbols,” Columbia Human Rights Law Review vol. 29, 355.

Dworkin, R.:1984, “Rights as Trumps,” In J. Waldron (Ed.), Theories of Rights , 153-167 (Oxford University Press, London).

Eisenschiml v. Fawcett Pub. (7 th Cir.) 246 F.2d 598; 1957 U.S. App. LEXIS 5399.

Estate Of Martin Luther King, Jr., Inc., v. CBS, Inc ., ( N.D. GA, Atlanta Div., 1998), 13 F. Supp. 2d 1347; 1998 U.S. Dist. LEXIS 11287; 47 U.S.P.Q.2D (BNA) 1611.

European Parliament and Council of the European Union: 1996. EU Databases Directive.

Farley, C.: 1997, “Protecting Folklore of Indigenous Peoples: Is Intellectual Property the Answer?” Connecticut Law Review vol. 30, 1-25.

Feist v. Rural Telephone Co. (111 S. Ct. 1282; 1991 U.S. LEXIS 1856).

Ginsburg, J.C.:1990, “Creation and Commercial Value: Copyright Protection of Works of Information,” Columbia Law Review, 90(7), 1865-1938.

Goldstein, P.:1992, “Copyright,” Law and Contemporary Problems , 55(2), 79-91.

Gordon, W.:1990, “Toward a Jurisprudence of Benefits: The Norms of Copyright and the Problem of Private Censorship,” The University of Chicago Law Review , 57, 1009-1049.

Gordon, W.J.:1989, “An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory,” Stanford Law Review, vol.41 (July), 1343-1469.

H.R. 354. Collections of Information Antipiracy Act. 106 th Cong. Lst Sess. (1999).

H.R. REP. No. 2222, 60th Cong., 2d. Sess. 7. (1909) (R eport accompanying the Copyright Act of 1909).

Hettinger, E.C.:1993, “Justifying Intellectual Property Rights,” Philosophy and Public Affairs, vol.

Hicks, J.B.:1987, “Copyright and Computer Databases: Is Traditional Compilation Law Adequate? Texas Law Review , vol. 65, 5, 993-1028.

Hohfeld, W.N.:1923, Fundamental Legal Conceptions As Applied In Judicial Reasoning And Other Legal Essays By Wesley Newcomb Hohfeld. (Yale University Press, . New Haven).

Kost, R.J.:1987, “The End of Copyright,” In Network Advisory Committee (Ed.), Intellectual Property Rights in an Electronic Age: Network Planning Paper No. 16, Proceedings of the Library of Congress Network Advisory Committee Meeting, April 22-24, 1987 , 19-25 (Network Development and MARC Standards Office Library of Congress, Washington, DC).

Landes, W.M., & Posner, R.A.:1989, “An Economic Analysis of Copyright Law,” Journal of Legal Studies, vol. 28, 325-363.

Lara, G: 1998, “The Privacy of American Films in China: Why the U.S. Art Form is Not Protected by Copyright Laws in the People’s Republic of China,” UCLA Journal of International Law and Foreign Affairs.

Litman, J.:1992, “Copyright and Information Policy, Law and Contemporary Problems ,” vol. 55(2), 185-209.

Litman, J.: 1994. “Mickey Mouse Emeritus: Character Protection and the Public Domain” University of Miami Entertainment & Sports Law Review, vol. 11, 429-435.

Lowndes, J.L.:1840, An historical sketch of the law of copyright; with remarks on Sergeant Talfourd's bill: And an Appendix Of The Copyright Laws Of Foreign Countries . (Saunders and Benning, London).

Miller, J.K.:1979, Applying The New Copyright Law: A Guide For Educators And Librarians . (American Library Association, Chicago, IL).

No Electronic Theft (NET) Act (1997). PL 105-147.

Palmer, T.G.:1990, “Intellectual Property: A Non-Posnerian Law and Economics Approach,” Hamline Law Review, vol. 12, 261-304.

Patterson, L.R., & Lindberg, S.W.:1991, “ The Nature of Copyright: A Law of Users' Rights . (University of Georgia Press, Athens, GA).

Patterson, L.R.:1968, Copyright In Historical Perspective ( Vanderbilt University Press, . Nashville, TN).

Patterson, L.R.:1984, Copyright and New Technology: The Impact On The Law Of Privacy Antitrust And Free Speech . (Office of Technology Assessment, United States Congress, Washington, D.C.).

Public Law No. 103-465 (1994) . The Trade-Related Aspects of Intellectual Property (TRIPs) of the General Agreement on Tariffs and Trade (GATT)

Putnam, G. H.: 1891a, “Literary Property, An Historical Sketch,”. In G. H. Putnam (Ed.), The Question of Copyright 36-95 (G.P. Putnam's Sons, New York).

Putnam, G. H.: 1891b, “International Copyright Will Not Increase The Prices Of Books.” In G.H. Putnam (Ed.), The Question of Copyright, 356-375 (G.P. Putnam's Sons, New York)..

Putnam, G. H.: 1891c, “The Contest For International Copyright,” In G.H. Putnam (Ed.), The Question of Copyright 376-398 (G.P. Putnam's Sons, New York).

Rawls, J.:1972, A Theory of Justice . (Oxford University Press, New York).

Ringer, B.A., & Gitlin, P.:1965, Copyrights. (Rev. Ed. ed.). (Practising Law Institute, New York.)

Ritchies, M., K. Dawkins and M. Vallianatos: 1996, “Intellectual Property Rights and Biodiversity: The Industrialization of Natural resources and Traditional Knowledge,” St. John’s Journal of Legal Commentary vol. 11, 431-452.

Rose, M.:1993, Authors and Owners: The Invention Of Copyright . (Harvard University Press, Cambridge, MA).

Rozek, R.P.:1990, “Protection Of Intellectual Property Rights: Research And Development Decisions And Economic Growth,” In F. W. Rushing & C. G. Brown (Eds.), Intellectual Property Rights In Science, Technology, And Economic Performance: International Comparisons , 32-46 (Westview, Boulder, Co).

Salinger v. Random House, Inc (2 nd Cir. 1987), 818 F.2d 252; 1987 U.S. App. LEXIS 7173; 2 U.S.P.Q.2D (BNA) 1727

Samuelson, P.:1997, “The U.S. Digital Agenda at WIPO,” Virginia Journal of International Law Association , vol. 37, 369-439.

Schlachter, E. The Intellectual Property Renaissance in Cyberspace: Why Copyright Law Could Be Unimportant on the Internet . (un pub)

Shiva, V.: 1993, “Intellectual Piracy and the Neem Tree,” The Ecologist vol. 23,223-227.

Shiva, V.: 1990, “Biodiversitry, Biotechnology, and Profit: The Need for a Peoples’ Plan to Protect Biological Diversity,” The Ecologist vol 20,44-47.

Sherwood, R.M.:1990, Intellectual Property And Economic Development . (Westview Press, San Francisco).

Singer, J.W.: 1982, “The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld,” Wisconsin Law Review, vol. 975-1059.

Slotkin, S.: 1996, “Trademark Piracy in Latin American: A Case Study on Reebok International Ltd .,” Loyola of Los Angeles International & Comparative Law Journal , vol. 18, 671-682.

Time Inc. v.. Bernard Geis Assoc. Inc . (S.D.N.Y. 1968) 293 F. Supp. 130; 1968 U.S. Dist. LEXIS 12385; 159 U.S.P.Q. (BNA) 663

The Sonny Bono Copyright Extension Act of 1998. PL 105-298.

SPA: 1997: www.spa.org/piracy/sftuse.htm

Trade Related Aspects of Intellectual Property (TRIPs) Agreement of the General Agreement of Tariffs and Trade: 1994

Waldron, J.:1984, “Introduction,” In J. Waldron (Ed.), Theories of Rights , 1-20. (Oxford University Press, London).

Waldron, J.:1988, The Right To Private Property . (Clarendon Press, Oxford).

Warburton, W.:1747, “A letter from an Author to a Member of Parliament Concerning Literary Property. London, 1747” Reprinted 1974 In Horace Walpole's Political Tracts, 1747-1748 with Two by William Warburton . (Garland Publishing., New York).

Warwick, S.: 1998, “Beyond Copyright: Database Protection And The Web,”. In Williams, Martha, (Ed.) Proceedings of the Nineteenth National Online Meeting New York Hilton May 12-14, 1998, 455-463, (Information Today, New York).

WIPO: 1996. WIPO Copyright Treat.. World Intellectual Property Organization, CRNR'DC/94. http://www.wipo.org/eng/diplconf/distrib/94dc.htm

Yeh, M.: 1996 “Up Against a Great Wall: The First Against Intellectual Property Piracy in China,” Minnesota Journal of Global Trade vol.5, 503-530.

© 1999 Shelly Warwick. Published with permission of the copyright holder.

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