Tom W. Bell Copyrights, Property, and Freedom IHS Liberty& Society Seminar, Chapman University, June 29, 2011 Introduction I. Copyright Basics II. (C) Policy III. (C) s Future Conclusion

Introduction A.Friends of liberty do not agree about copyright. B.Some regard it as a form of property at least as justified as--and perhaps even more justified than--property in tangibles. C.Others regard it as an unjustified violation of our natural and common law rights in our persons, property, and promises. D.We will discuss that debate--but first, some basics of copyright law and policy. Introduction I. Copyright Basics II. (C) Policy III. (C) s Future Conclusion Tom W. Bell, Copyrights, Property, & Freedom, slide 2, IHS Liberty & Society Seminar, Chapman University, June 29, 2011

Introduction I. Copyright Basics II. (C) Policy III. (C) s Future Conclusion Tom W. Bell, Copyrights, Property, & Freedom, slide 3, IHS Liberty & Society Seminar, Chapman University, June 29, 2011

I. Copyright Basics A.Copyright in U.S. law inheres automatically in all fixed expressive works. B.It does so thanks to the U.S. Constitution, Art. I, § 8, cl. 8, and the federal Copyright Act. C.It vests an author with exclusive rights to copy, publicly distribute, publicly display, etc., copies of a work. D.Those who hold copyrights can largely treat them like property, selling or otherwise transferring their exclusive rights in whole or in part. Introduction I. Copyright Basics II. (C) Policy III. (C) s Future Conclusion Tom W. Bell, Copyrights, Property, & Freedom, slide 4, IHS Liberty & Society Seminar, Chapman University, June 29, 2011

Introduction I. Copyright Basics II. (C) Policy III. (C) s Future Conclusion Tom W. Bell, Copyrights, Property, & Freedom, slide 5, IHS Liberty & Society Seminar, Chapman University, June 29, 2011

Introduction I. (C) Basics II. (C) Policy III. (C) s Future Conclusion Tom W. Bell, Copyrights, Property, & Freedom, slide 6, IHS Liberty & Society Seminar, Chapman University, June 29, 2011 D = Demand AR = Average Revenue

Introduction I. Copyright Basics II. (C) Policy III. (C) s Future Conclusion Tom W. Bell, Copyrights, Property, & Freedom, slide 7, IHS Liberty & Society Seminar, Chapman University, June 29, 2011 D = Demand AR = Average Revenue AC = Average Cost

Introduction I. Copyright Basics II. (C) Policy III. (C) s Future Conclusion Tom W. Bell, Copyrights, Property, & Freedom, slide 8, IHS Liberty & Society Seminar, Chapman University, June 29, 2011 D = Demand AR = Average Revenue

Introduction I. Copyright Basics II. (C) Policy III. (C) s Future Conclusion Tom W. Bell, Copyrights, Property, & Freedom, slide 9, IHS Liberty & Society Seminar, Chapman University, June 29, 2011 D = Demand AR = Average Revenue AC = Average Cost

Introduction I. How (C) Works II. (C) Policy III. (C) s Future Conclusion Tom W. Bell, Copyrights, Property, & Freedom, slide 10, IHS Liberty & Society Seminar, Chapman University, June 23, 2010

Tom W. Bell, Copyrights, Property, & Freedom, slide 11, IHS Liberty & Society Seminar, Chapman University, June 29, 2011 III. Copyright s Future Introduction I. How (C) Works II. (C) Policy III. (C) s Future Conclusion

III. Copyright s Future A.Should copyright continue to grow? That depends in part on whether we understand it as a natural right or statutory privilege. 1.Lockean theory. a.You own yourself; you own your labor; you own the fruits of your labor. b.See Ayn Rand, Lysander Spooner, and Herbert Spencer. c.But see Locke, who described the copyright of his day as a manifest... Invasion of the trade, liberty, and property of the subject. b.See also, probably, the Founders. Introduction I. Copyright Basics II. (C) Policy III. (C) s Future Conclusion Tom W. Bell, Copyrights, Property, & Freedom, slide 12, IHS Liberty & Society Seminar, Chapman University, June 29, 2011

III. Copyright s Future A.Natural right or statutory privilege? 2.Naturalist positivism, per Hayek and Barnett. a."[G]roups which happen to have adopted rules conducive to a more effective order of actions will tend to prevail over other groups with a less effective order." F.A. Hayek b. [I]f we want a society in which persons can survive and pursue happiness, peace and prosperity, then we should respect the liberal conception of justiceas defined by natural rightsand the rule of law. Randy Barnett. 3.Naturally defensible rights. Introduction I. Copyright Basics II. (C) Policy III. (C) s Future Conclusion Tom W. Bell, Copyrights, Property, & Freedom, slide 13, IHS Liberty & Society Seminar, Chapman University, June 29, 2011

III. Copyright s Future B.Copyright is not like Tangible Property 1. (C) is non-rivalrous in consumption 2.Right to exclude weaker 2.Use rights not augmented 3. Alienation rights limited 4. Preservation? Only for limited times. 5.Acquisition: statutory protections necessary. 6.Probably no compensation for takings Conclusion: Defend property sm from copyright. Introduction I. Copyright Basics II. (C) Policy III. (C) s Future Conclusion Tom W. Bell, Copyrights, Property, & Freedom, slide 14, IHS Liberty & Society Seminar, Chapman University, June 29, 2011

III. Copyright s Future C. The Morality of Unauthorized Copying 1. We naturally frown on unauthorized and misattributed copying. 2. Fraud already bars that, however, and most people's condemnations against unauthorized copying don't go much beyond harmful lying. 3.The virtues of gratitude and generosity suggest that we have an obligation to compensate authors. That falls short of a duty, however; charity does not necessarily entail welfare. Introduction I. Copyright Basics II. (C) Policy III. (C) s Future Conclusion Tom W. Bell, Copyrights, Property, & Freedom, slide 15, IHS Liberty & Society Seminar, Chapman University, June 29, 2011

III. Copyright s Future D.Outgrowing Copyright Introduction I. Copyright Basics II. (C) Policy III. (C) s Future Conclusion Tom W. Bell, Copyrights, Property, & Freedom, slide 16, IHS Liberty & Society Seminar, Chapman University, June 29, 2011

Introduction I. Copyright Basics II. (C) Policy III. (C) s Future Conclusion Tom W. Bell, Copyrights, Property, & Freedom, slide 17, IHS Liberty & Society Seminar, Chapman University, June 29, 2011

Conclusion A.Copyright gives authors fungible exclusive rights in fixed expressive works. B.Copyright policy aims to correct an (alleged) market failure. C.Whether or not copyright qualifies as a natural right remains subject to debate, but it doubtless conflicts with the natural and common law rights that protect our persons, property, and promises. Introduction I. Copyright Basics II. (C) Policy III. (C) s Future Conclusion Tom W. Bell, Copyrights, Property, & Freedom, slide 18, IHS Liberty & Society Seminar, Chapman University, June 29, 2011