First, modern economics no longer provides a basis for distinguishing between the economic effects of the copyrights of private producers of expressive works and the economic effects of the real, personal, and intellectual property rights of private producers of most other potentially valuable goods and services. All of those exclusive rights tend to drive self-catalyzing processes of productive, entrepreneurial innovation that result in imperfect competition among producers of differentiated goods, services, or works. Consequently, those still hurling the epithet “monopoly” at the copyrights of successful creators and creative industries are implicitly flinging the same rhetorical dagger at essentially all other entrepreneurial creators of other differentiated products and services.
Second, some analysts have recently advocated a new variant of the copyrights-are-monopolies argument that could be called the “founders’-copyright critique” of current US copyright laws. This critique claims that special-interest lobbying has caused modern copyright laws to betray an allegedly traditional, highly skeptical, limited approach to copyright protection first adopted by the founders of the United States and the framers of the Constitution.
But this critique is just wrong. The founders and framers actually believed that promoting private speech by protecting copyrights was a fundamental duty of a civilized, democratic nation. Consequently, founders and framers such as George Washington and James Madison moved so swiftly to protect copyrights that the United States enacted world history’s first market-based national copyright law—the first to treat the copyrights of authors as market-generating private property rights.
Together, these economic and historical analyses can help end centuries of debates about the nature of copyrights. Copyrights can no longer be fairly characterized as sui generis government-granted monopoly rights. They are property rights that tend to generate, among creators of expressive works, the same sort of imperfect competition by innovation that drives growth and progress throughout the most vibrant, productive sectors of our market economy.
For example, tonight, many Americans may watch a TV show or movie on a tablet computer. One such person might use Verizon Internet-access services, a Linksys WiFi access point, an Apple iPad, Google Search, a Netflix subscription, or Akamai-like caching services—all to enjoy a work created and owned by the Walt Disney Company. Legally enforceable exclusive rights enable all those entities to make their contributions to that routine event. And none of those rights are just government-granted monopoly rights—not even the copyrights of the Walt Disney Company.
For more than 300 years, reasoned analysis of copyright law and policy has been obstructed by recurring disputes about whether copyrights are “private property rights” or sui generis “government-granted monopoly rights.” Understanding why and how we could now resolve copyright law’s property/monopoly disputes requires some familiarity with their long, international history. The following summary is not intended to acknowledge all the contributions made by many thoughtful scholars, analysts, and institutions during centuries of such disputes. Rather, it is intended to explain two historical facts: (1) copyright law’s property/monopoly disputes have scarcely changed over centuries in which our understanding of economics and market competition has changed fundamentally; and (2) these disputes have focused on applying the competing labels “property” and “monopoly” to copyrights.
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