This chapter deals with the theoretical foundation of copyright law and considers the various philosophical theories in this regard. The link between copyright law and the philosophical ideals that underpin its theory and interpretation is noted and considered within the ambits of the public sphere as proposed by Habermas (1974, p. 49). The discussion also includes an explanation of the public domain and focuses on the following theories in particular: the utilitarian approach, the public benefit theory, the natural rights theory, and the moral rights theory. The chapter concludes by comparing the theories and noting their alignment and differences.
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In this chapter, the philosophical theories relating to copyright are discussed with reference to the public sphere and, more particularly, the literary public sphere within which authors as creators find themselves. A discussion of these issues is important in laying the foundation for the research questions in relation to the value of copyright to authors, how they are affected by the implementation of copyright laws and structures and the extent to which their perceptions of copyright are influenced by changing technology.
Whilst there has been some debate regarding the accepted underlying philosophical concepts justifying copyright law, Australia has followed a largely utilitarian approach, as is evident from current legislation and the reasons set out in the Ergas Committee Report (2000, p. 34) (ECR). As discussed in the previous chapter, the ECR recognised that the general objective of the intellectual property law system in Australia was utilitarian and, more specifically, economic rather than moral in character (Ergas, 2000, p. 33). However, as copyright law represents something different to its varying member groups (i.e. authors, publishers and users), it is necessary to go beyond this theory and consider a range of philosophical concepts and frameworks, which might be seen to underpin copyright.
Saunders expressed the view that:
Historical diversities and internal discontinuities make the legal sphere a good obstacle to any global theory concerning authorship. They also suggest why, given its purposeful character, legal personality is not and does not need to be all of a piece. As an attribute of legal personality, ownership of a copyright is inseparable from a particular purpose or purposes; in this respect, as a personifying or person-forming mechanism, the law of copyright is not bound by the philosophical ideal of an absolute or unified right. Yet, as we shall see, in less positive accounts of authorship it is in the name of just such an ideal that copyright is charged with the narrowness of its concerns and the piecemeal nature of its rights, remedies and objects of protection that have come to be bundled under its provisions (1992, pp. 19-20).
Thus, although critical of the historical philosophical approach in interpreting authorship, Saunders implicitly recognises the inextricable link between copyright law and the philosophical ideals that underpin its theory and interpretation.
Goldstein distinguishes between copyright and ‘author’s right’ as two separate legal traditions for protecting literary and artistic works and states:
Copyright’s philosophical premise is utilitarian: the purpose of copyright is to stimulate production of the widest possible variety of creative goods at the lowest possible price. By contrast, author’s right is rooted in the philosophy of natural rights: an author is entitled to protection of his work as a matter of right and justice (2001, p. 3).
He regards these two traditions as ‘far more alike than they are unlike’ and cites the Berne Convention as a bridging factor and reason for the merging of the two philosophies by recognising authors’ moral rights (Article 6bis) and also providing for allowable uses of authors’ work (Articles 8-14) (Goldstein, 2001, p. 4).
Australian author Frank Moorhouse describes the range of philosophical positions in the following interview:
…the first position being the Socialist or Totalitarian model – that copyright is based on the premise that the State has educated you and cultivated your talents and so what you do with those talents should belong to the State; the second being the Capitalist model – that copyright is simply a tradeable commodity; the third being the European position – that copyright is not only a tradeable commodity but it is an extension of the personality of the creator; and the fourth being the British model – that copyright is partly a commodity with a commercial nature but that it also has a social dimension to it, so that after a term of 50 years it should go into the public domain where the public can use it in many ways and not have to pay for its use (Sexton, 2007, p. 6).