Copyright, Economic Freedom and the RSC Policy Brief

A few days ago, the Republican Study Committee signaled, and then retreated from, a vast change in the GOP’s attitude toward copyright. It released and then retracted a now infamous policy brief entitled “Three Myths about Copyright Law and Where to Start to Fix It.

This RSC Policy Brief was perceived as a Big Deal.  The Republican Study Committee positions itself as the most free market caucus of GOP Members of the House of Representatives. Some were all-too-eager to assert that the publication of the policy brief showed that conservatives and libertarian-leaning Republicans had come to view current copyright policy as incompatible with free market economics. 

The blogosphere certainly interpreted the policy brief as signaling a major change in direction for the GOP.  Stewart Baker put it well over at the Volokh Conspiracy, calling it “the most radical proposal for overhauling copyright that we have seen in recent years — and the most head-turning change of direction in decades for either party on intellectual property issues.”

Given the fact that many interpreted the brief as so significant, it is perhaps best that it was withdrawn. Earlier on this blog, Sandra Aistars opined that perhaps the brief should have stayed up, but have been placed in the context of a broader debate.  At first I agreed—we academics always favor debate—but after reviewing the initial reaction around the web, I’m no longer so sanguine. 

If we are to have a debate about copyright reform, then let’s by all means do so.  But if a major party is to change its position, it ought to happen with more thought and care than by way of a nine page policy brief which was, as David Post noted in otherwise praising it, “rather clumsily written.” Nevertheless, the brief was taken seriously and thus merits some response.

A few of the themes in the RSC brief were particularly troubling. It contended that copyright was justified only as a utilitarian policy—by what creators might do for society. Moreover, it portrayed copyright as morally and economically dubious—as a form of regulation, incompatible with economic freedom.

In the spirit of engaging debate, I offer a few essential points about copyright that respond to these criticisms. In a blog posting, one can do little more than sketch out a few points, but this post can serve as a partial response and offer a few useful links to further reading.

The Philosophy and Morality of Copyright

The people who create expressive works deserve to own them and benefit from them. So do the companies that finance and purchase these works for commercial exploitation.

To some, these assertions are uncontroversial and perhaps even banal. But to others, particularly those who engage in modern copyright debates, they may seem alien—or if familiar, then unfortunate at best. This latter view appears to be the one that informs the RSC brief.

Why would the idea of “deserving” to own and benefit from creative works be controversial?  The debate has its roots in philosophy.

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