University of Wollongong Research Online University of Wollongong Thesis Collection 2017+ University of Wollongong Thesis Collections 2018 Rethinking Copyright: Intellectual Property and Second-Personal Communication James McKeahnie University of Wollongong Follow this and additional works at: https://ro.uow.edu.au/theses1 University of Wollongong Copyright Warning You may print or download ONE copy of this document for the purpose of your own research or study. The University does not authorise you to copy, communicate or otherwise make available electronically to any other person any copyright material contained on this site. You are reminded of the following: This work is copyright. Apart from any use permitted under the Copyright Act 1968, no part of this work may be reproduced by any process, nor may any other exclusive right be exercised, without the permission of the author. Copyright owners are entitled to take legal action against persons who infringe their copyright. 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For further information contact the UOW Library: [email protected] Rethinking Copyright: Intellectual Property and Second-Personal Communication James McKeahnie Supervisors: Dr. David Neil Dr. Patrick McGivern This thesis is presented as part of the requirement for the conferral of the degree: Doctor of Philosophy This research has been conducted with the support of the Australian Government Research Training Program Scholarship The University of Wollongong School of Humanities and Social Enquiry March 2018 Abstract The historical development of copyright has been compromised by a lack of clear and coherent justificatory principles. A set of these principles is required to assess the appropriateness of copyright’s dual expansion in duration and scope. Whereas copyright was once limited to a term of 14 years, it now persists for the lifetime of an author plus 70 years. Similarly, whereas copyright once applied uniquely to the printed word, it now applies to maps, charts, music, photography, choreography, sculpture, software, and more. Previously, attempts to assess how long copyright should last, and attempts to assess which objects copyright ought to apply to, have been conducted largely independently. In this thesis I consider both questions in conjunction, arguing that resolving the problem of copyright’s scope, by determining which objects should be copyrightable (and why), is a necessary precursor in determining what protections (and what duration of protection) those objects should receive. In this way I attempt to resolve the central tension between utilitarian economic accounts and deontological natural law accounts of copyright. Utilitarian economic accounts consider that copyright is justified precisely insofar as it incentivises the production of socially valuable copyrightable works, by providing monopoly rights that prevent free-riders from driving down the value of those works as commodities. Because copyright involves a restriction against the free use of socially valuable objects, however, on this view the duration of copyright should be restricted to the shortest term that still preserves its initial incentivising effect. By comparison, the deontological view regards copyright as a natural entitlement due to creators for the labour they perform. On this view, copyright protections should be perpetual, just the same as any other natural property rights which arise from labour. I demonstrate through an assessment of the Lockean labour theory of property that the natural law account cannot sustain a justification of perpetual economic copyright. However, an account of droits moral – or authors’ moral rights – is examined as a basis for the provision of perpetual copyright. Although it is appropriate to regard moral rights as perpetual rights, and despite moral rights intersecting importantly with economic copyright protections, it is shown that moral rights are not economic rights. Additionally, although moral rights legislation is indexed as a subsection of copyright law, it is also shown that most moral rights apply equally to uncopyrightable objects. Only one moral right, which is the right protecting authors against the modification of i their work, correctly applies uniquely to copyrightable objects. It is shown that this is because correctly copyrightable objects are second-personally communicative, which makes it uniquely important that they are preserved as a specific author’s exact communication. It is argued this second-personal communicative quality should be recognised as the defining feature of copyrightable objects, and so ought to inform copyright’s scope. This requires a recategorization of what objects are copyrightable. Because second-personal communicativeness represents the only natural difference between correctly copyrightable and uncopyrightable objects, however, the duration of economic copyright must continue to be determined as an empirical matter of incentivisation. ii Acknowledgements I owe a great debt to Dr. David Neil and Dr. Patrick McGivern for supervising this thesis. The direction they provided, and the support they offered, were both invaluable throughout the research process. Without that underpinning, this project would not have been possible. I also offer my sincere thanks to Dr. Hugh Breakey and Assistant Professor Bryan Cwik for generously agreeing to examine the thesis. Both examiners offered poignant and insightful criticism, which was most instructive in improving the content and clarity of the thesis. The argument advanced within the thesis was also fundamentally informed by two anonymous reviewers, whose criticisms of an early version of the account shaped the overall direction of the thesis. Furthermore, the account has been refined based on the insightful considerations offered by various conference audiences, especially at the Australasian Association of Philosophy annual conferences. These contributions have been greatly appreciated. Finally, I owe a special thanks to Katherine Berthon, whose support and inspiration has been integral to the completion of the thesis. Your persistent encouragement has always buoyed me, and your confidence has changed what seems possible to me. Thank you, especially, for your patience. iii Certification I, James McKeahnie, declare that this thesis submitted in fulfilment of the requirements for the conferral of the degree Doctor of Philosophy, from the University of Wollongong, is wholly my own work unless otherwise references or acknowledged. This document has not been submitted for qualifications at any other academic institution. James McKeahnie 31st March 2018 iv List of Names or Abbreviations IP = Intellectual Property NPG = Nature Publishing Group VARA = Visual Artists Rights Act WIPO = World Intellectual Property Organisation v Table of Contents Abstract .......................................................................................................................... i Acknowledgements ...................................................................................................... iii Certification .................................................................................................................. iv List of Names or Abbreviations .................................................................................... v Table of Contents ......................................................................................................... vi List of Tables, Figures and Illustrations ....................................................................... xi Chapter 1 ....................................................................................................................... 1 Structure of the Argument: The Dual Expansion of Copyright ................................. 1 1.1 Introduction ............................................................................................... 1 1.2 Outline of the Thesis ................................................................................. 2 1.2.1 Duration Problem: An Economic Approach ......................................... 2 1.2.2 Duration Problem: A Philosophical Approach ...................................... 3 1.2.3 The Scope Problem ............................................................................... 5 1.3 A Visual Representation of the Argument ................................................ 7 Diagram 1.1 ........................................................................................................ 9 Diagram 1.2 ...................................................................................................... 10 Diagram 1.3 .....................................................................................................