Normative Copyright: A Conceptual Framework for Copyright Philosophy

As copyright issues have moved towards the forefront of popular culture, trade, and the Supreme Court docket, we have lost sight of the first principles framed copyright’s development. This article reviews and identifies legal and conceptual framework that serves as the legal foundation for recognition of copyright and the social basis for acceptance of copyright by the general public. The article discusses the basis for legitimacy of copyright. The article explores various theoretical underpinnings of copyright, critiques the more recent approaches to copyright, assessing copyright as an intangible and as a natural right, reviews the traditional economic and incentive-based rationales for copyright, and analyzes the conceptual philosophical framework that shapes the policies underlying copyright. Building on the core fundamentals identified in the earlier sections and suggests some steps necessary to reorient each of the three primary building blocks for normative acceptance of copyright – social contract, technology, and law. The outcome of the research indicates that the intangible nature of copyright does not govern the public’s respect – or lack of respect – for copyright. Similarly, the natural rights approach to copyright used in Europe, while a sound basis for copyright protection, does not provide any guidance on how copyright laws should be drafted. I return to the constitutional incentive of copyright which requires that copyright is granted to promote progress of science and the useful arts. Instead of interpreting this in a narrow, economic fashion, however, I suggest that the more proper balance is that which has been articulated by the Supreme Court since 1879, that expression is protected so that authors will develop new facts and ideas for the betterment of the public, and apply this approach to issues involving clickwrap agreements, fair use, reverse engineering, and peer-to-peer file sharing.