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The Incentives Argument Revisited: A Millean Account of Copyright
Author(s) -
Falgoust Michael
Publication year - 2014
Publication title -
the southern journal of philosophy
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.281
H-Index - 21
eISSN - 2041-6962
pISSN - 0038-4283
DOI - 10.1111/sjp.12059
Subject(s) - argument (complex analysis) , utilitarianism , incentive , law and economics , intellectual property , vulnerability (computing) , positive economics , sociology , political science , epistemology , economics , law , philosophy , microeconomics , computer science , biochemistry , chemistry , computer security
The U . S . C onstitution employs a utilitarian view in authorizing C ongress to establish patents and copyrights. Let us refer to this way of justifying copyright as the I ncentives A rgument, or more extensively, the I ncentives A rgument for I ntellectual P roperty R ights. While seemingly straightforward, the I ncentives A rgument has been widely criticized in philosophical literature on intellectual property. Scholars have come to prefer N eo‐ L ockean labor‐desert accounts, grounding intellectual property rights in the author's natural ownership claims over his creations. N eo‐ L ockean accounts are thought to avoid some of the problems classically associated with utilitarian arguments, such as vulnerability to empirical evidence and an inability to make sense of rights or duties morally prior to consequential considerations. Fortunately, many criticisms articulated by opponents of the I ncentives A rgument can be answered by a strategic retreat to the version of utilitarianism found in the work of J ohn S tuart M ill. I argue that not only does a M illian account of the Incentives Argument prove less vulnerable to oft‐cited criticisms, but also allows for a more robust account of how the audience benefits from a proliferation of creative works. M ill's focus on the importance of critical self‐development allows for a deeper analysis of how creative works benefit members of the audience as individuals and as a community. Within a M illian framework, viewing the audience as mere passive consumers of media fails to take into account the impact of expressive acts on an individual's critical self‐development. Instead, one must see members of the audience as active participants in the creation of meaning and the common culture. Construing the community that receives creative works as an A ctive A udience alters the landscape of copyright, and the I ncentives A rgument, making balancing the desires of creators and the desires of audience members a key priority.