September 27, 2010
Ng on Property and Progress
Alina Ng (Mississippi College School of Law) has posted Property and Progress on SSRN. Here's the abstract:
Copyright laws aim to protect intangible interests in the use of literary and artistic works to provide creators with an incentive to produce. The law rationalizes that by granting exclusive “property” rights in creative works, authors will be encouraged to produce works for the ultimate benefit of society as the potential for commercial rewards is assumed to be the primary motivation for creativity. But, the exclusive control these rights give creators and owners of copyrighted works have been the subject of severe criticism because they create access barriers to the use of content, which, free speech and civil liberties advocates, argue should be free of restrictions for civil discourse and political dialogue. This Article argues that, contrary to contemporary thought that rights in the copyright system hampers progress, the protection of individual rights in literary and artistic works - besides encouraging creativity for progress - also brings into the copyright system a normative order for social conduct that advances society towards the Constitutional goal of progress. A strong institution of property rights for the copyright system correlates with greater progress of science and arts because the recognition and protection of individual authorial autonomy instills individual and collective social responsibility in how works are used and produced, generates public respect for the act of authorship, and fosters education, research, and economic development through the production and use of literary and artistic works. The creation of diverse works will contribute towards progress of science and arts only if an underlying foundation of property rights protect the creator of a work to instill a sense of individual autonomy and responsible authorship and directs public use of the work toward socially beneficial purposes in ways that strengthen, rather than weaken, the moral fabric of society. This Article concludes that the progress of science and arts is not only dependent on a system of statutory copyright provided by the Copyright Act but on an institution of property laws to provide normative guidance on proper conduct in the production and use of literary and artistic works in ways, which would advance progress.
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