26 November 2013

Kant and coalescence

One of my students - it's that time of the year - today noted the gibe by US Supreme Roberts in 2011 that
Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.
I was reminded of that somewhat misplaced criticism - the Supremes have of course benefitted on occasion from serious scholarship - in reading 'Copyright and Truth' by Maurizio Borghi in (2010) 12(1) Theoretical Inquiries in Law 1, which boldly
calls into question the primary meaning of copyright law. It argues that copyright is not primarily a legal instrument, but rather a fundamental mode of human existence. The starting point of the analysis is Kant’s definition of a book as a “public address” and of author’s rights as ultimately being grounded in the furtherance and maintenance of truth. Building on Kant’s argument, the Article defines the copyright primary subject matter as the act of speaking publicly in one’s own name, and the copyright sphere as the author-public coalescence that such act of speaking generates. This enables reaching a proper understanding of the scope of copyright and to characterizing its specificity as compared to its “fellow rights,” patents and trademarks.
Borghi comments that
some scholars have looked at copyright from perspectives that, albeit not always explicitly, call into question elements which cannot be simplistically reduced to interests in conflict. In various ways, these perspectives raise the awareness that copyright primarily, and not just secondarily, refers to a dimension that goes beyond any particular or even "general" interest. Copyright involves (as some have pointed out) matters such as democracy, a communicative sphere, or an ongoing dialogue between human beings. What all these different approaches have in common is that they overcome the binary language of the dominating paradigm and draw attention to a third and higher instance which is at stake in copyright. 
In this Article I argue that this third and higher instance, which is implicitly evoked by concepts like democracy, communication and dialogue, is better captured by upfront reference to truth. Kant’s notion of an author’s work as the act of speaking to the public, and the fundamental legal principles that arise from this elemental notion, represent the basis of my attempt to understand copyright as being grounded in the most fundamental need that human beings share when living in community with others, namely, the need for truth. In Part II  I consider Kant’s argument on the wrongfulness of reprinting, with the aim of arriving at a suitable definition of copyright subject matter. In Part II I analyze the intimate link between the subject matter of copyright and truth, and clarify what truth is in this context. The reflection developed by Hannah Arendt in the essay Truth and Politics will be of guidance in my analysis. In Part III I attempt to outline the specificity of copyright by comparing its own way of relating to truth with that of other so-called intellectual property rights, namely patents and trademarks. I conclude with some provisional remarks on the legitimate scope of copyright.
He concludes -
Truth as reliance is an instance at stake in all the three main directions of human existence that we have singled out, namely towards oneself, towards things, and towards other human beings. The whole of these three directions is what we call a world. When we relate to things we rely on reliance; when we relate to ourselves we need to represent reliance; and when we relate to others we elucidate reliance. In all these relations, and not only in the last one, man is coalescing with other men. The tone of this human coalescence is different in each of the three kinds of relation, and accordingly we find what we have termed a working, trading and thinking coalescence, respectively. All these forms are related to each other, and they are equal in rank. 
Nevertheless, the thinking coalescence, which articulates the relation of human existence to others, has a singular preeminence over the two other coalescences and their respective underlying relations. In a way, truth is first and foremost what men experience in thinking, and since, as has been shown, it belongs to the very nature of thinking to be carried out in common with others, it follows that truth is primarily apprehended by acts of speaking publicly in one’s own name. Such preeminence is not a priority in the sense that the other ways of experiencing truth depend on or are subordinated to acts of thinking. As a matter of fact, affairs of men, their working and trading, can run perfectly without the assistance of thinking. What thinking provides is just a gratuitous and perhaps unnecessary pivot. To use a pertinent Latin expression, we may say that what we have termed a "thinking coalescence" is a primum inter pares in the triad of human coalescences: it is primum, since it is pivotal to any human coalescence as such, but inter pares, since all other forms have equal rank and dignity. 
Accordingly, copyright is primum among its peer fellow rights. Nowhere is this preeminence clearer than in the institutions that define the permitted acts under copyright law, namely limitations and exceptions, the British doctrine of fair dealing and its American counterpart, fair use. It is disputed whether these institutions should be interpreted as restrictions to the author’s rights, that can be applied only negatively as a defense against infringement liability, or whether they define true and proper users’ rights, that can be positively asserted by any author’s counterpart. The reference to the truth as the proper "what-about" of copyright may suggest that copyright is neither author’s nor users’, but just, if I may say so, coalescence’s right. As far as the fair dealing defense is concerned, it might be argued that the "fairness" is nothing but the perfection of reciprocal acts aimed at furthering truth — acts which, so to speak, resonate with and enlighten each other, since it is in the very nature of copyright to withstand coalescence.