Tim complains that when it comes to defining the scope of copyright rights,
[W]e have a spectrum. On one extreme is the possibility that a person could own the genre of swamp-rock, . . . . On the other extreme, Fogerty can only own a specific, exact arrangement of notes . . . . In seeking a middle ground between these extremes we use “reasonableness.” But I don’t think reasonableness works if we’re using a natural right theory of copyright. If John Fogerty invents swamp-rock, then under a natural right theory of copyright, then he should be able to prohibit me from writing in that genre.I take Tim to say that a natural rights view of copyright would logically permit the ownership of ideas—something that the Copyright Act specifically excludes from protection. On that reading, I think Tim has a valid point. The real-world law of copyright does not jibe with the theory of natural rights. Copyright practice diverges from natural rights in other areas, too. I catalog some of them in, Escape from Copyright: Market Success vs. Statutory Failure in the Protection of Expressive Works, 69 U. Cin. L. Rev. 741, 760-774 (2001).
Nonetheless, I don’t think that the case against natural copyrights can rely solely on the law’s failure to meet the demands of theory. Critics of natural rights to tangible property could make similar claims about the all-too-imperfect laws in that area. Consider, for instance, the long-standing Poletown decision that, as Tim describes, only recently and thankfully bit the dust. Granted, copyright practice diverges from natural rights theory more often and widely than the law of tangible property does. Still, I would hesitate to deny natural copyrights solely on that argument.
Glen offers a different angle on the natural copyrights dispute, one arising from his fundamentally consequentialist justification of all rights. On that view, whether copyright qualifies as a natural right (as opposed to merely a statutory right) depends on a variety of contingencies. Those contingencies include such things as the demand for expressive works, the incentives needed to foster their creation, and the costs of enforcing any rights thereby set up.
I’m largely sympathetic with that view of rights, because I do not think that natural rights derive from a priori reasons. I follow Randy Barnett in viewing natural rights from the viewpoint of naturalist legal positivism (as opposed to statist legal positivism). For Barnett’s early views on the topic, see Toward a Theory of Legal Naturalism, 2 J. Libertarian Studies, 97 (1978). On that view, natural rights rank as such because they prove necessary for people to live together in peace and prosperity. Economic theory can illuminate much about those rights, and legal reasoning can help to administer them, but practice remains the ultimate test of whether a right is natural to human thriving.
I don’t think copyright meets that test. Copyright arose relatively recently and from purely statutory origins. It did not evolve as a necessary means of guarding against antisocial violence and killing poverty. Economic theory offers only equivocating support for copyright, portraying it as only one of many tools for incentivizing the supply of expressive works. Economics also teaches that expressive works, as non-rivalrous in consumption, differ fundamentally from tangible goods. Deontological justifications of copyright, most notably those arising from Locke’s, Hegel’s or von Humbolt’s theories, prove susceptible to convincing counterarguments. I thus regard copyright as at best good public policy and at worst as an unnecessary and improper transgression on our natural rights to persons, properties, and promises.