Alina Ng, ‘Finding Copyright’s Core Content’

Copyright laws are conventionally justified on consequentialist grounds. As a result, value judgements about the viability of copyright laws are often based on their social or economic consequences. However, despite longstanding conversations among scholars about the nature of copyright and its purported effects on societies and markets, a consensus of how copyright laws ought to be structured to encourage authorship and other forms of creative endeavor has yet to emerge. Framing the analysis of copyright laws within consequentialist frameworks as intellectual property scholars have conventionally tended to do, while important in studying the consequences of laws from a socio-economic perspective, has not yielded satisfactory answers to a more fundamental question about the proper content and scope of copyright laws. For many communities and societies with increasing humanistic interests and goals, this question about the law’s proper content is a perennial one. To answer this question, this paper draws from two sources. First, legal theories on natural law, which require as a general rule that man-made laws satisfy an objective moral standard, support a proposition that copyright laws have essential moral content that may be identified through reason. Second, catholic social teachings on the common good, respect for the life and dignity of the human person, and correlation of rights and responsibility offer a framework to inform and shape appropriate copyright laws and policies. This paper proposes that for the progress of science to be sustained, the core content of copyright laws must protect the conditions that contribute towards authentic forms of authorship and support the flourishing and thriving of relationship-oriented communities. By identifying core moral content to inform and guide the development of copyright law and policy, a healthy ecology for the production and distribution of creative works may emerge to produce greater equity in how literary and artistic resources are ultimately used in the information economy.

Ng, Alina, Finding Copyright’s Core Content (May 5, 2013). University of St. Thomas Law Journal, Forthcoming.

First posted 2013-06-08 08:30:16

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