With summer classes finally winding down (I wasn’t aware of how stressful the past two weeks had been until I realized I didn’t have any more papers due each day of the week), I have a small window in which I can start to clean up an article on intellectual property that I’ve been working on for the past few months.  Mainly as a service for myself, I’m going to start writing up random ideas and information related to the article.  With that said, I guess it makes sense to start with the justifications for copy rights.

Copyrights can serve two major purposes:  The first is utilitarian, that in order to induce innovation, we must incentivize creators by allowing them certain rights to their ideas.  This justification is cited in the U.S. Constitution’s Intellectual Property Clause, “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;”  Obviously a market-driven method, the key here is to recognize that creator profits are a means to an end.

The other major purpose recognizes creator profits as a moral right, and so instead of simply being a means, these guarantees of profit are an end as well.  Curiously, for all of the founding father’s reliance on Locke, this is one subject where they parted ways.  Locke argued that just as property was an extension of self, so too does a creator deserve profits for the work he puts into a product.  This moral justification for intellectual property is widespread through European laws, and you will accordingly find that artists maintain a far greater amount of control over their works, even after they are sold to other parties.

So why does this matter?  In short, the amount of rights awarded to creators are vastly different, depending on what you are trying to produce.  With an economic or market justification, the goal is to award as few rights (and thereby monopoly power) as possible in order to maximize innovation.  However, if you base your laws on a moral justification, the goal becomes to maximize profits, which typically entails ensuring a great swath of rights for the potential creator.

While this may all seem quite theoretical, things come to a head starting in about 1976.  With growing international trade, American politicians want to secure copyrights for their authors in European nations.  In order to establish this system of reciprocity, they end up creating laws that will allow them entry onto the Berne Convention.  The problem is that the convention recognized the moral justification for copyrights, rather than the economic.  As further international treaties have been created such as the TRIPS Accords, this movement of American IP law towards a moral justification has continued on.

The obvious issue though is that copyrights and patents derive their constitutional authority from a clause which is written from an economic justification.  If this statement is read with the “promotion of progress” clause acting as a limitation on the copyright and patent power of Congress, then any law that extends creator profits at the expense of this promotion would be unconstitutional.

While similar arguments have been made before the Supreme Court, none have done so under this precise angle.  Accordingly, if the case Eldred v. Ashcroft were revisited, only this time prosecuted under the attack that the CTEA hampers innovation for the sake of extending creator profits, this would allow a second chance to strike the law down as unconstitutional.