The Metaphysics and Ethics of Copyright

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Hick, Darren Hudson
Levinson, Jerrold
Copyright, broadly defined, is a legal form of proprietary ownership of authored works, including literary, pictorial, musical, and selected other intellectual kinds. Ideally, one who is familiar with the law should know whether something they have created is protected by copyright (and to what extent), and whether some action they take will infringe a copyright. Unfortunately, this is often not the case. Rather, established copyright law gives rise to a host of problems, including legal decisions and established doctrines that are alternatively arbitrary, counterintuitive, and contradictory. My central argument is that these problems arise from a failure in copyright law to recognize the nature of its objects, <i>authored works</i>, and that a coherent and stable approach to copyright must be built upon such an understanding. To this end, I outline an ontology of authored works suitable for grounding both the legal and ethical domains of copyright. Centrally, I contend, a reasonable understanding of copyright depends on grasping four composite dimensions of authored works: their <i>atomic</i> dimension--the parts of which they are composed, and the selection and arrangement of these parts; their <i>causal</i> dimension--their <i>contexts of creation</i> and <i>instantiation</i>, and the <i>weak</i> and <i>strong historical links</i> that connect a given work to others; their <i>abstract</i> dimension--that all such works are best understood as type/token entities capable of multiple instantiation; and their <i>categorial</i> dimension--that multiple works belonging to mutually-exclusive categories can be embodied in the same physical object. On an understanding of these factors, I establish conditions for the copyrightability of authored works, for the infringement of these copyrights, and for the creation of "derivative works." Finally, I consider the <i>right</i> of copyright. First showing how the strongest contenders for grounding this right--the Lockean and Constitutional approaches--fail to align with our understanding of authored works, I sketch an alternative approach--one based on the author's creativity as realized in the authored work--building on the ontological account outlined above, and for establishing the extent of this right, including its duration and when it might be infringed without amounting to a <i>violation</i> of the right.