The Purposes of Copyright as They Have Evolved Over Time

By TAP Staff

Posted on June 8, 2010


By Tara Wheatland, Copyright Research Fellow, Berkeley Center for Law & Technology at Berkeley Law School.

On April 9-10, 2010, The Berkeley Center for Law and Technology hosted a conference entitled Copyright @ 300: Looking Back at the Statute of Anne and Looking Forward to Challenges of the Future. This post presents a recap of one of many interesting and thought-provoking panels at the conference.

Read the entire conference summary:

The Purposes of Copyright panel explored the evolution of the goals and purposes of copyright law, from even before the Statute of Anne, up through the present.  Professor Chris Sprigman from the University of Virginia Law school explored the theoretical underpinnings and logical outcomes of three competing core justifications for copyright law—the encouragement of learning by incentivizing investment in production of copyrighted works; the protection of the fruits of a creator’s labor; and the protection of a creator’s personality interest in their works.  He concluded that while each of these theories contributes to a compelling narrative about the importance of copyright law, the theories break down, or collapse in on one another, when attempting to translate them into operational copyright rules.  Professor Julie Cohen, visiting professor at Harvard Law School and on the faculty at Georgetown University Law School, also identified some weaknesses in the traditional justifications for copyright, particularly the conception of copyright as an incentive to create.  Professor Cohen argued that copyright law can be reconceived as industrial policy, rather than creative policy, and suggested that principles from corporate law can facilitate the relationships between interested parties—namely, creators, intermediaries, and consumers. 

Professor Thomas Nachbar, also of the University of Virginia Law School, characterized the purposes of copyright as essentially twofold—to clearly allocate rights around which parties can negotiate and specialize, and to divide up the social surplus which arises from the creating of works of authorship.  Professor Nachbar traced these purposes through the development of copyright law from the Statute of Anne onward. 

Professor Bernt Hugenholtz from the University of Amsterdam discussed efforts to harmonize copyright law across the EU, primarily through the adoption of numerous European Community Directives covering copyright law, and attempted to discern the normative “vision of copyright” underlying these harmonization efforts.  Professor Hugenholtz noted that these directives have largely focused on economic issues, while leaving out the cultural and social dimensions of copyright.  Although this phenomenon can be explained by the permissible scope of these Directives under the laws of the European Union, it is somewhat ironic, since these cultural and social dimensions—namely, the protection of author’s rights through a focus on authorship, author’s contracts, and moral rights—are largely what sets continental European copyright law apart from that of the United Kingdom and the United States.  Although global harmonization efforts have come closer to bridging the gap between these two approaches to copyright protection, Professor Hugenholtz suggested that there is much to recommend a renewed focus on author’s rights, even in the United States, due to the inherently sympathetic nature of arguments based on the creative process and original creators of protected works.  Professor Hugenholtz also discussed the Wittem Group’s draft copyright law, representing most recent copyright harmonization efforts in Europe, under the newly adopted Lisbon Treaty’s constitutional framework for European intellectual property laws.

  • Panel mp3
  • Catherine Kirkman, Wilson Sonsini Goodrich & Rosati (moderator)
  • Christopher Sprigman, University of Virginia Law School
  • Thomas Nachbar, University of Virginia Law School - pdf
  • Julie Cohen, Visiting Professor, Harvard Law School; Georgetown University Law School
  • Bernt Hugenholtz, University of Amsterdam - pdf

This post is provided by Tara Wheatland, Copyright Research Fellow, Berkeley Center for Law & Technology at Berkeley Law School.