Doctor of Philosophy
School of Humanities and Social Inquiry
The historical development of copyright has been compromised by a lack of clear and coherent justificatory principles. A set of these principles is required to assess the appropriateness of copyright’s dual expansion in duration and scope. Whereas copyright was once limited to a term of 14 years, it now persists for the lifetime of an author plus 70 years. Similarly, whereas copyright once applied uniquely to the printed word, it now applies to maps, charts, music, photography, choreography, sculpture, software, and more. Previously, attempts to assess how long copyright should last, and attempts to assess which objects copyright ought to apply to, have been conducted largely independently. In this thesis I consider both questions in conjunction, arguing that resolving the problem of copyright’s scope, by determining which objects should be copyrightable (and why), is a necessary precursor in determining what protections (and what duration of protection) those objects should receive.
In this way I attempt to resolve the central tension between utilitarian economic accounts and deontological natural law accounts of copyright. Utilitarian economic accounts consider that copyright is justified precisely insofar as it incentivises the production of socially valuable copyrightable works, by providing monopoly rights that prevent free-riders from driving down the value of those works as commodities. Because copyright involves a restriction against the free use of socially valuable objects, however, on this view the duration of copyright should be restricted to the shortest term that still preserves its initial incentivising effect. By comparison, the deontological view regards copyright as a natural entitlement due to creators for the labour they perform. On this view, copyright protections should be perpetual, just the same as any other natural property rights which arise from labour.
I demonstrate through an assessment of the Lockean labour theory of property that the natural law account cannot sustain a justification of perpetual economic copyright. However, an account of droits moral – or authors’ moral rights – is examined as a basis for the provision of perpetual copyright. Although it is appropriate to regard moral rights as perpetual rights, and despite moral rights intersecting importantly with economic copyright protections, it is shown that moral rights are not economic rights. Additionally, although moral rights legislation is indexed as a subsection of copyright law, it is also shown that most moral rights apply equally to uncopyrightable objects. Only one moral right, which is the right protecting authors against the modification of their work, correctly applies uniquely to copyrightable objects. It is shown that this is because correctly copyrightable objects are second-personally communicative, which makes it uniquely important that they are preserved as a specific author’s exact communication. It is argued this second-personal communicative quality should be recognised as the defining feature of copyrightable objects, and so ought to inform copyright’s scope. This requires a recategorization of what objects are copyrightable. Because second-personal communicativeness represents the only natural difference between correctly copyrightable and uncopyrightable objects, however, the duration of economic copyright must continue to be determined as an empirical matter of incentivisation.
McKeahnie, James, Rethinking Copyright: Intellectual Property and Second-Personal Communication, Doctor of Philosophy thesis, School of Humanities and Social Inquiry, University of Wollongong, 2018. https://ro.uow.edu.au/theses1/436