by Neil Weinstock Netanel. New York: Oxford University Press, 2008. 288pp. Hardback. $34.95/£18.99. ISBN: 9780195137620.
Reviewed by Francis Raven, Department of Philosophy, Temple University. Email: francisraven [at] gmail.com.
The field is full of books on copyright. They range from academic to popular and from good to bad; therefore, it is difficult to publish an original book on copyright at this point in history. While much of COPYRIGHT’S PARADOX provides a synthesis of the literature on copyright, which could be obtained elsewhere, what Neil Weinstock Netanel offers is a fresh perspective on this literature, namely the perspective from freedom of expression. As Netanel writes, “Copyright, I argue, should be delimited primarily by how it can truly serve as an ‘engine of free expression.’ Copyright’s scope, duration, and character should be shaped to best further the First Amendment goals of robust debate and expressive delivery” (p.10). This perspective is unique, and is the primary reason why those interested in copyright law should turn to COPYRIGHT’S PARADOX.
To begin, the paradox: copyright both increases and decreases the quantity of creative material. Copyright increases the amount of creative material available by creating a financial incentive to create copyrightable works. On the other hand, it decreases the amount of creative material by imposing high costs on artists who wish to create works that are in any way derivative of (or sample from) copyrighted works (broadly, this category of derivative works would include most of both Disney and Shakespeare). Thus, the characteristics of copyright law can support the contradictory arguments that one, exclusive copyrights are necessary and two, that they should not exist at all. Almost all books on copyright seek some way of navigating this paradox. COPYRIGHT’S PARADOX, with its emphasis on freedom of expression, does better than most.
What I want to do is to think through this paradox by considering what sort of monopolies copyrights are. Most theorists, when writing about copyright begin by stating that copyright is the only constitutionally sanctioned monopoly. The argument goes that a monopoly for these rights is necessary because otherwise artists and scientists would have no incentive to create their works. I would like to suggest some problems of thinking of copyrights as monopolies, even if it is technically correct. I will then show how the idea/expression dichotomy protects the realm of intellectual objects from the deleterious effects of monopolies.
An economically relevant definition of a monopoly is: “an industry in which there is only one supplier of a product with no close substitutes and in which barriers to entry prevent the entry of other firms” (Blinder, Baumol, and Gale 2001, at 212). Thus, the monopoly of copyright is the exclusive control over the production and distribution of copies. But each individual copyright holder has a [*487] monopoly only over the intellectual objects on which she holds a copyright. For example, David Foster Wallace, author of EVERYTHING AND MORE: A COMPACT HISTORY OF INFINITY, held the copyright on his manuscript of that book until he sold it to his publisher, Norton. After that point Norton holds the copyright to his book. As a result of these two facts, then, in a very weird sense Mr. Wallace can be said to have held a monopoly over copying the manuscript of his particular book and in the same weird sense his publisher, Norton, can be said to have a monopoly over copying and distributing his book.
To speak of a monopoly in this case is strange because Mr. Wallace and Norton only have a monopoly over respectively one manuscript and one book, but there are plenty of adequately substitutable manuscripts and books. This means that the buyer of such intellectual objects can just go elsewhere if the seller (Mr. Wallace or Norton) sells the intellectual object at too high a price. Therefore, the copyright monopolist is a price maker only in a very bizarre sense. For instance, Norton could decide to sell Mr. Wallace’s book on infinity for $100,000. Because Norton has a monopoly on copying that work nobody could produce a cheaper copy of it. But people could (and surely would) decide not to buy Mr. Wallace’s book at all. After all, a cursory look at amazon.com indicates that there are several books about the history of infinity that would probably do just as good a job at teaching someone about that mathematical concept.
However, one can imagine counterexamples to this schema. Say, for instance, that J. K. Rowling wanted to charge $200 for her the newest Harry Potter book. Many people would buy the book at the outrageous asking price because there are no close substitutes for the next volume in the Potter series. Another children’s fantasy book just does not cut it. In this case, calling copyright a monopoly makes more sense for there are no close substitutes for the next Harry Potter book. This is the fuzzy part of analyzing monopolies, for what counts as a “close substitute” changes depending on the context. As we will see, this means that copyright monopolies normally do not create economic inefficiencies.
In general, monopolies create economic inefficiencies because they restrict output, which ruins competition and creates a rise in prices. The particular type of monopoly that accompanies copyright is not capable of restricting output and thus creating a rise in prices because of the fact that there are usually close substitutes for copyrighted goods. That is, there are many books about the history of infinity, not merely David Foster Wallace’s book on the subject. But why is it that there are close substitutes? Is there something about copyrighted objects that makes the inefficient attributes of monopolies difficult to obtain?
I propose that there is and that this something is a strong division between ideas and expressions. This dichotomy, at the heart of copyright law, is basically (and crudely) the distinction between the idea of love and the concrete, fixed expression of love in a particular song. The idea of love cannot be copyrighted, but expressions of love (for instance, the Beatles’ “I Wanna Hold Your Hand”) [*488] can be copyrighted. This general distinction means that artists the world over can write songs about love without fear of infringing upon earlier songs about love. Edward Samuels introduces the distinction by writing that “the ‘ideas’ that are the fruit of an author’s labors go into the public domain, while only the author’s particular expression remains the author’s to control” (Samuels 1989). A person cannot copyright her ideas, but only expressions of those ideas.
This distinction is particularly important in science where earlier ideas form the basis for later ideas and expressions of them. But it is also essential in the arts where it is often said that a limited number of themes are continually expressed in different ways. But why did this distinction arise in the first place? In order to answer this question it is necessary to look at the history of copyright law. As Samuels writes, “Copyright in the early days protected only against literal copying, and not against a more abstract taking of a copyrighted work.” Obviously, if actual copying is the right that copyrights protect, then ideas will not be protected since they cannot actually be copied; whereas expressions of ideas can actually be copied.
The idea/expression dichotomy prevents the most negative aspects of monopoly by ensuring that it is always (or almost always) possible for there to be close substitutes of the work in question. That is, as long as artist B can use the ideas expressed in artist A’s work in his own expressive work, then artist B can always create a close substitute for artist A’s work. In most cases this will make the effects (and inefficiencies) of copyright monopolies on the market negligible.
However, in some cases where there are not close substitutes for the work in question the effects of copyright monopoly might not be so insignificant. The effects of monopoly will always obtain when the expression is the part of the work that cannot be substituted. This is the case with the hypothetical new Harry Potter book. Even though the ideas of wizards and potions are in the public domain, J.K. Rowling’s character Harry Potter is her expression and thus cannot be used by other people in their own books. Thus, it is possible, even though we have maintained a distinction between ideas and expressions that there will still be some of the negative effects of monopolies.
In sum, in some ways copyright should be thought of as a monopoly (in that it is an exclusive right), but in other ways it should not (in that there are almost always close substitutes to the work at hand). The idea/expression dichotomy, which is central to copyright law, is an essential method for keeping copyright monopolies innocuous. Netanel’s perspective from First Amendment principles firmly (if tacitly) uses the idea/expression dichotomy to promote the expressive ends of humanity. By showing readers how copyright can serve as an engine of free expression “while leaving ample room for speakers to build on copyrighted works to convey their message, express their personal commitments, and fashion new art” Netanel guides us towards the possibility of a more constructive copyright regime. To start doing this Netanel believes we need to strike a balance between copyrights and freedom of expression [*489] since, “[a]s experience teaches us, copyright law truly serves as an engine of free expression when it limits the reach of the copyright holder control no less than by spurring the creation of original works of authorship” (p.218). Striking this balance that will require a lot of political and intellectual work. This is the work for which COPYRIGHT’S PARADOX prepares us.
Blinder, Alan S., William J. Baumol and Colton L. Gale. 2001. “11: Monopoly.” MICROECONOMICS: PRINCIPLES AND POLICY. Belmont, CA: Thomson South-Western College Publishing.
Samuels, Edward. 1989. “The Idea-Expression Dichotomy In Copyright Law” 56 TENNESSEE LAW REVIEW 321-463.
Wallace, David Foster. 2003. EVERYTHING AND MORE: A COMPACT HISTORY OF INFINITY. New York: Norton.
© Copyright 2008 by the author, Francis Raven.