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In American constitutionalism, copyrights are rooted in individuals' natural property rights. But copyrights are sometimes criticized for being harmful government monopolies. My Perspectives from FSF Scholars paper published on April 7, titled "The Property Rights View of Copyrights Beats Bogus Monopoly Talk," identifies clear distinctions between copyrights and illicit monopolies that have long been recognized by American statesmen, jurists, and legal thinkers.
The natural property rights basis for copyrights prevailed in America when the Philadelphia Convention of 1787 proposed, and state conventions subsequently ratified, the U.S. Constitution and the Article I, Section 8 Copyright Clause. According to this view, a creative artist's just claim to legal title to a copyright is based on his or her physical and intellectual labor in producing a book, movie, painting, photo, song, sound recording, or other work. The resulting work and the proceeds generated by that work are the private property of the work's owner. Copyright law secures to a creative artist, for a term of years, the exclusive right to reproduce copies, distribute copies of or perform the work, and prepare derivatives of the work. This provides a financial inducement to creative commercial activity that also benefits the public.
As my paper explains, harmful monopolies typically involve possession of market power in a product or service market. However, copyrights confer no such power over the market of creative ideas. Copyrights are limited to particular books, movies, sound recordings, or other specific works expressed in tangible form. And copyrights erect no bar to entry for would-be competitors to develop and market their own works.
Modern antitrust law also rejects the notion that mere possession of a copyright constitutes or presumptively constitutes possession of market power. In Illinois Tool Works Inc. v. Independent Ink, Inc. (2006), a case involving tying arrangements involving patented goods, the U.S. Supreme Court ruled that patent ownership does not create a presumption of relevant market power. The logic of Illinois Tool Works applies equally in the copyright context, and that application has been recognized by lower courts, including Mediacom Communications Corp. v. Sinclair Broadcast Group, Inc., 460 F. Supp. 2d 1012 (S.D. Iowa 2006). Moreover, the U.S. Department of Justice and Federal Trade Commission's "Antitrust Guidelines for the Licensing of Intellectual Property" (2017) reject any presumption that a copyright necessarily confers market power on its owner. The Guidelines acknowledge that alternatives are usually readily available to the public.
For more on this, please read my paper "The Property Rights View of Copyrights Beats Bogus Monopoly Talk."
