'Copyright and Distributive Justice' by Justin Hughes and Robert P. Merges in (2016) 92
Notre Dame Law Review comments
When concerns about copyright’s effect on distributive justice are raised those concerns typically focus on access to information. Most of these discussions assume that by conferring control over access to copyrighted works, copyright in general concentrates wealth with corporations and a few individuals. This article takes a different perspective, proposing that copyright has been and remains an important tool for wealth distribution to a large and diverse group of individual creators. Our focus is not on the distribution of copyrighted works – who controls them and who has access to them. Instead, we concentrate on the distribution of income that flows from sales of copyrighted works. The income streams created by copyright, we argue, constitute another of copyright's contributions to distributive justice.
Using a Rawlsian framework for distributive justice, we consider – both theoretically and empirically – how copyright law allows individuals to earn income and build wealth. We provide a sketch of Rawls’ theoretical structure for distributive justice, including a detailed look at Rawls’ canonical “Difference Principle.”
With Rawls’ framework in the background, we first show that copyright contributes vitally to the incomes of average-earning creative professionals (with a focus on the music industry). Second, we argue that copyright is a uniquely effective institution in providing “equality of opportunity” in wealth accumulation. In this regard, we propose that copyright has been central to whatever limited “equality of opportunity” African-Americans have enjoyed in the United States. Indeed, for the wealthiest African-Americans, copyright has been the most important form of property for social and economic advancement. This is so, we argue, because copyright is one of the few social institutions that permit a person to turn labor directly into economic assets (in the form of copyrighted works), and hence to create real, sustainable wealth starting only with personal labor. This, we conclude, is an important dimension of copyright’s role in overall distributive justice.
The authors conclude -
The dominant discourse in copyright scholarship
has
treated creative individuals only as a
means
to an end: generation
of original expression. When scholars have expressed any concern at all about distributive justice, it has been only about fair
access to information and material, in other words, as a bookend
to the dominant utilitarian analysis.
But when we turn our attention away from considerations of fair access to works, and to-
ward considerations of a fair distribution of income and wealth,
we come to see a neglected side of copyright. Our main point
throughout has been this: from the limited evidence available,
the copyright system appears to contribute positively and significantly to economic distributive justice in the U.S. economy.
Using the framework of John Rawls’ principles of justice, we
have explored how copyright
increases the income of middle tier
members of society who are trying to support themselves in creative professions, professions we all
–
everyone from politicians
to law professors
–
laud as
part of
the desirable ‘information
economy’ future. We have also reviewed mechanisms in existing
copyright law
–
from minor procedural speed bumps to termination of transfer
–
that show copyright’s orientation to protect
the prospects of
creative individuals.
We
have also discussed
other tools in the copyright toolbox to improve the distributive
footprint left by copyright, including
droit de suite
for artists and
equitable remuneration mechanisms used in other developed
economies.
Another
requirement
of Rawlsian distributive justice is that
all individuals have fair equality of opportunity for all “offices
and positions.”
There is no question that American society as a
whole has failed to provide such equality of opportunity for
women and minorities,
particularly for African-Americans. In
that context, copyright has been a rare if not unique institution
providing opportunity for African-Americans to achieve the
greatest economic success: the list
of the wealthiest black citizens of the U.S. is utterly dominated by people whose fortunes
are rooted in the copyright industries: entertainment,
music,
sports,
publishing, and the like.
Given the massive economic
barriers facing the African-American community generally, this
is a striking realization.
Not that copyright in itself
is
an effective
anti-poverty program; not that it offsets structural racism in its
myriad forms. Our
point
here is simply that copyright has been
uniquely effective in permitting
African-Americans something
closer to fair equality of
opportunity to achieve the highest levels
of wealth.
In the end, our argument is simple:
copyright, though a form
of property, does not
only or
disproportionately reward large
corporate interests.
Copyright
is, and can be, an important tool
to promote a just distribution of
income and wealth
in society.
This has political as well as economic ramifications.
The historian and biographer A.N. Wilson wrote in the 1980s that
“[p]roperty never has been abolished
and never will be abolished. It is simply a question of who has it. And the fairest system ever devised is one by which all, rather than none, [are]
property owners.”
That sentiment certainly comports with
the vision of the Framers of the American Republic.
These were
individuals
who saw property ownership as a bulwark against
tyranny and a mechanism to advance the individual.
The little
dollop of economic power copyright confers helps creative people support themselves
and
a thriving creative class
feeds our
culture and ultimately our polity.
In helping distribute income
to
creative individuals and supporting them as a professional
class,
copyright
forms part of a thriving democratic republic
and
a just society
