City Research Online

Abstract

The state should grant copyright to authors only when doing so promotes utility; so goes the utilitarian argument for copyright law. In recent years, however, this argument has faced three criticisms. As a normative matter, critics argue that a utilitarian copyright system is neither just nor attractive. As an epistemological matter, critics argue that society cannot ever know whether copyright promotes utility. And as an interpretive matter, critics argue that utilitarianism fails to appreciate what copyright is really all about: progress of the sciences and useful arts. And so, an increasing number of scholars conclude that copyright should be awarded, not when doing so aids utility, but when doing so secures natural rights or promotes democratic norms.

This Article refines and defends the utilitarian argument for copyright law. The Article departs the company of prior utilitarians, however, in its conceptualization of “utility.” Taking inspiration from John Stuart Mill’s defense of utilitarianism, the Article argues that utility in copyright cannot be understood in purely quantitative terms. Of course, the overall amount of creative work that the copyright system generates matters a great deal; but it is not the only thing that matters. The type of creative work incentivized by the system also matters: creative work that feeds the mind, sparks feelings and imagination, and promotes moral sentiments provide copyright’s “higher pleasures.” A truly utilitarian copyright system is, therefore, one that produces more and better creative work. A utilitarian copyright of this kind is normatively attractive, epistemologically realistic, and interpretively consistent with the constitutional structure of American copyright law.

Publication Type:	Article
Subjects:	K Law > K Law (General)
Departments:	The City Law School > Academic Programmes

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