Justifications for Copyright: The Economic Justification
Date | 16 August 2019 |
Pages | 13-41 |
Citation | (2014) IPLJ 13 |
Author | Sadulla Karjiker |
Published date | 16 August 2019 |
JUSTIFICATIONS FOR COPYRIGHT:
THE ECONOMIC J USTIFICATION*
Senior Lecture r, Faculty of Law, Stelle nbosch University
protection, namely, the labour-based theories (natu ral rights theory and t he
reward theory) and the pers onality theory, were considered.1 As demonstrated
the economic theory, both of which will now be considere d. The basis of
copyright law in the United St ates of America (US) and the United Kingdom
is more economic or utilitar ian, rather than being ba sed on author’s rights,
2
to the analysis of law is simply a form of utilitar ianism, and, therefore, subject
to the same criticisms. It is subm itted that the economic and util itarian
that while some social inst itutions, such as copyright protect ion, cannot be
economic reasons for their exis tence.
After an int roduction to the economic analysis of law, an argument
* This art icle is based on part of my docto ral dissertatio n at Stellenbosch University. I would li ke
to thank my su pervisor, Prof Owen De an, for his valuable guid ance during my re search.
1 S Karjike r ‘Justifications for copy right: The moral jus tifications‘ (2013) 1 IPLJ 42.
law‘ (2009) 27 Cardozo Art s & Ent LJ
modern world: Is it t ime for change?’ (2012) 7 JIPLP 565 at 566.
13
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maximisation),3 which is advocated by economic a nalysts, and why it is
considered to be a superior nor m for legal theory tha n utilitarianism.
other two being the labour-based t heories and the personality t heory – and is
4
in the evolution of copyright protection in A nglo-American systems of
intellectual prope rty, and is said to form the basis of copyright law in the US,
having been enshr ined in the constitutiona l foundations of US intellectual
pr oper ty law.5
A utilitaria n approach to matters advocates that a n act or institution is
preferred if it is likely to maxi mise social happiness or utility, namely, the
extent by which pleasure exceeds pain.6 T he appropriate course of action
states that ‘[i]n its absolute form, the doctr ine that an individual has ce rtain
inalienable rights is inc ompatible with utilitarianism, ie with t he doctrine that
the right acts are t hose that do most to promote the general happiness’.7 There
are, therefore, no inalienable, or a prior i, rights; whether a right or institution
is recognised is simply a fu nction of its outcome. A particular cou rse of
action is correct be cause of the result achieved, rather than be cause of any
3 When referr ing to efficiency in t his work, we will be conce rned with allocative ef ficiency – the
aggregate of the c osts and benefits of a par ticular situat ion. In other words, we are in terested in
how society can get t he most out of particular re sources. The accepted st andard for efficiency
in economics is t he pursuit of Kaldor-Hicks ef ficiency, aggregate, n ot individual, wealt h
maximisa tion. A given situ ation is Kaldor-Hick s efficient provid ed aggregate we alth is increa sed,
and those who have be nefitted can, in t heory, compensate t hose who have lost. JL Har rison Law
and Economic s in a Nutshell 1 ed (1995) 27–35; and AM Polinsky An Introd uction to Law and
Economics 3 ed (2003) 7–11.
4 SE Trosow ‘The illu sive search for justific atory theories: Co pyright, commod ification and
capital’ (2003) 16 Can J L & Juris 217 at 226.
5 SP Caland rillo ‘An economic analysi s of intellectual p roperty rig hts: Justificat ions and problems
of exclusive rights, in centives to generate i nformation, and t he alternative of a govern ment-
run reward s ystem’ (1998) 9 Fordham Intell Prop Media & Ent LJ 3 01 at 310; EC Hettinger
‘Justifying i ntellectual p roperty’ (1989) 18 Philosophy and Publi c Affairs 31 at 47; and AD Moore
‘A Lockean theory of intel lectual proper ty’ (1997) 21 Hamline L Rev 65.
6 RA Posner ‘Utilit arianism, econom ics, and legal theory’ (1979) 8 The Journ al of Legal Studies
103 a t 111.
7 B Russell Histor y of Western Philosophy 1 ed (200 5) 572.
14 South African Intellectual Property Law Journal (2014) 2
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