Against Strong Copyright in E-Business

Introduction

One of the most ethically contentious areas of e-business is the assertion and enforcement of intellectual property rights by businesses based upon content provision. Businesses engaged in content delivery tend to view themselves as sellers of goods rather than service providers, and this difference in perspective has significant social, practical and ethical implications. By debunking the idea that strong copyright over content in a digital context is morally supported on Lockean or Kantian considerations, and by shifting the burden of proof on economic and utilitarian considerations against those who employ strong forms of copyright, the chapter demonstrates that there is generally a moral obligation to refrain from use of standard (or, maximalist) copyright protection in e-business. Thus, businesses based upon content provision should, for both moral and practical reasons, change their business model from the product to the service economy.

While it is well established in U.S. law that sweat-of-the-brow does not generate goods subject to copyrighting, there is still a strong intuition that a moral, if not a legal right over expressive works is generated through labour. By an investigation of the Lockean presumption against the right of exclusion, we can see that a viewpoint true to Locke’s moral emphasis on the preservation of freedoms held within the state of nature would not support such a right given the current structure of digital media. Indeed, Locke himself, even though he wrote in a far different communications context, supported only limited intellectual property rights, which he justified on a utilitarian, not a labour-desert basis.

The Kantian basis of intellectual property rights is approached next. The Kantian view centers on author’s rights, and is far removed from the current legal regime in place in the U.S. and spread internationally through the World Intellectual Property Organization, but again speaks to a strong intuition that a moral, if not a legal right to exclusion is generated in expressive works. Here, by looking at Kant’s Metaphysics of Morals, as well as his essay “On the Wrongfulness of Unauthorized Publication,” we see that the moral basis of the right of exclusion is founded upon the communicative relationship between an author and her public, and offers no support to the use of strong copyright law in our current communications context. Instead, a Kantian perspective would today support open-content models utilizing public domain dedication or GPL/Creative Commons licensing.

Finally, a utilitarian perspective—the explicit basis of intellectual property rights in the Anglo-American legal tradition—is considered. The moral basis being found in consequences rather than in natural or moral rights, the great success of the open-source movement is the primary consideration. By looking at recent history, it can be seen that the practical necessity of a right of exclusion over expressive works within our current communications context is suspect at best. The primary utilitarian considerations holding weight today have to do with the large role played by copyright-based industries in our economy, and the disutility that would be caused by undermining the basis of these industries. This consideration, while important, is counterbalanced by considerations of the loss of public rights required by the use of strong copyright.