The Incentives Argument Revisited: A Millean Account of Copyright

Abstract

AbstractThe U.S. Constitution employs a utilitarian view in authorizing Congress to establish patents and copyrights. Let us refer to this way of justifying copyright as the Incentives Argument, or more extensively, the Incentives Argument for Intellectual Property Rights. While seemingly straightforward, the Incentives Argument has been widely criticized in philosophical literature on intellectual property. Scholars have come to prefer Neo‐Lockean labor‐desert accounts, grounding intellectual property rights in the author's natural ownership claims over his creations. Neo‐Lockean 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 Incentives Argument can be answered by a strategic retreat to the version of utilitarianism found in the work of John Stuart Mill. I argue that not only does a Millian 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. Mill'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 Millian 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 Active Audience alters the landscape of copyright, and the Incentives Argument, making balancing the desires of creators and the desires of audience members a key priority.