Economic Right, Moral Right, and
Copyright protections are ubiquitous to contemporary Western
societies, but the rationales behind them are widely divergent.
The two basic categories of defense for copyright are the
doctrine of Economic Right and the doctrine of Moral Right.
Economic Right maintains that copyright protections are intended
to encourage innovation by protecting what is rightfully the
property of the creator because of his labor and "creative
spark," and is thus concerned more with balancing the
rights of creators with market access. On the other hand,
Moral Right views the work as being in some way an extension
of the creator's self, and therefore sees a need for more
expansive protections. This difference generally represents
the difference between the American (economic) justification
and the European (moral) justification, and is well illustrated
by the differing approaches of the United States and the European
Union to the question of databases.
Economic Right doctrine arguably developed from the philosophical
lineage of Adam Smith and John Stuart Mill and finds the primary
purpose of copyright in its status as a tool for maintaining
a duly competitive market. To illustrate, market economics
recognizes intellectual property as a public good which is:
1) non-excludable; and 2) non-rivalrous, meaning that more
than one person can enjoy the property without excluding one
another from its benefits. Copyrights, though monopolies for
a period of time, are therefore tolerated because authors
and inventors would, arguably, have no market incentive to
create absent the right to exclude others from their works
There has long been a debate in the United States over whether
one should hold more closely to John Locke's view of property
as a perpetual right in personhood, which is borne of one's
mixing his/her labor with nature , Indeed, many amendments
to copyright laws have been made that bring the United States
closer to European standards. However, the general lag between
a European expansion of copyright privileges and an American
one is due to a long-standing interest in maintaining markets
rather than providing for some abstract moral rights. The
fundamental components of copyright based upon the doctrine
of Economic Right are that it provides rights for a limited
time (although this is being progressively dispensed with
in American law) and that it protects the exclusive right
to copy, distribute, and sell the work during that time. Over
the course of the law's development, the exclusive rights
to create derivative works, to perform a work publicly, and
to display it publicly were added (cf. Samuels, 167-169).
These rights are generally bound by a "first sale"
limitation under which the exclusivity regarding distribution
and display is generally terminated after the sale of the
physical work, with a few exceptions (cf. Samuels, 168-169).
The limited scope, and originally the limited time (28 years),
allowed for the author and publisher to enjoy the profits
for the early run of the work while preventing copyright regulations
from obstructing the free use of new ideas and thereby inhibiting
the market process, which was the most important factor for
the Utilitarian mindset. However, the underpinnings of European
copyright have a slightly different emphasis.
The doctrine of Moral Right (frequently seen in French as
droit morale) is a significantly broader construction of copyright.
While economic rights can be bought and sold, and are connected
to the "work" as a commodity, moral rights are viewed
as something intrinsically possessed by the "author"
of the "works" because of his "genius."
As one textbook phrases it, the moral rights of authors with
respect to their works are construed as "inalienable,
natural rights, arising from a conception of the work as an
extension of the author's personality" (Joyce, 608).
While Federal Copyright law in the United States does not
formally recognize moral rights, many states such as New York
have statutes which recognize such rights of visual artists,
and the doctrine of Moral Right underlies many copyright laws
in other nations, especially in Europe. The Berne Convention
declares, in article 6bis, that the author has the right to
prohibit any use of his work "which would be prejudicial
to his honor or reputation" (qtd. in Joyce, 619). The
rights generally afforded to authors are the right of integrity,
that is, the right to prohibit mutilation or distortion of
his work, the right of attribution (i.e. the right to be acknowledged
as the sole creator of the work and to prevent anyone else
from being called its creator), and the right of disclosure,
which allows the author to decide when and in what form his
work will be released to the public (cf. Joyce, 608). Other
rights that are sometimes granted include the right of the
author to recall all existing copies of the work (if, for
example, his view of the subject matter changes) and a right
to prevent excessive unwarranted criticism, but these rights
are rarely recognized (cf. Joyce, 608). The difference between
economic rights, which emphasize the qualities of the work
as a commodity, and moral rights, which emphasize the way
in which the work is an extension of the author's person,
is very well illustrated by the differing approaches taken
by the United States and the European Union with regard to
the copyright of computer databases.
In the United States, the standards set by the Supreme Court
case Feist Publications v. Rural Telephone Service Co (1991)
are generally construed to limit the possibility of copyrighting
a database beyond the exact layout and attributes of the original
page. In the case, Feist Publications, while creating a phonebook
for a larger region, incorporated the list of phone numbers
in the phonebook published by Rural Telephone Service into
its own without receiving permission to do so. The Supreme
Court ultimately decided that Rural Telephone Services could
not copyright the list of phone numbers, and not even the
order in which they appeared. Justice O'Conner, writing for
the seven-justice majority, declares that "there is nothing
remotely creative about arranging names alphabetically in
a white pages directory. It is an age-old practice, firmly
rooted in tradition and so commonplace that it has come to
be expected as a matter of course . . . It is not only unoriginal,
it is practically inevitable" (10). Because of the obviousness
of the arrangement, the phonebook "does not possess the
minimal creative spark required by the Copyright Act and the
Constitution," and therefore cannot be held as a copyrightable
work (10). The Court sees the protection of mere facts as
anti-competitive and therefore contrary to the intent of copyright
law. Further, the Court dismisses the so-called "sweat
of the brow" theory of copyright as outside of the scope
of current law, and thereby removes a substantial portion
of the argument for copyrighting databases while also eschewing
any Lockean idea of property being attached to labor rather
than to "originality" (9). Despite the attempts
of a group of legislators, every attempt since Feist to pass
intellectual property protections specifically for databases
has failed to pass Congress (cf. Joyce, 270-272). Because
the "work" is not sufficiently "original,"
the United States is uncomfortable imposing copyright regulations
which could impede the market's access to the data contained
in the databases. The priority here is to assess the degree
to which the protections help or hurt the market, and therefore
the United States refuses to acknowledge the right to copyright
data. This has not been the case in Europe, where most countries
have come into conformity with the European Union's Common
Position on the protection of databases as intellectual property.
Directive 96/9/EC of the European Parliament and the Council
of the European Union (11 March 1996) requires member states
to provide intellectual property protections for databases
and other Internet compilations. Among the many "whereas
clauses" stating the reasons for the law is the following,
"Whereas copyright remains an appropriate form of exclusive
right for authors who have created databases" (5). The
European Union has construed the database as a form of "authorial"
creation in a way that the United States is unwilling to do.
Because of this, the authors of such databases must be granted
copyright in the same way as authors of books. Article 3 of
the directive explicitly states that databases "by reason
of the selection or arrangement of their contents, constitute
the author's own intellectual creation" (3.1). It further
states that, outside of the "selection and arrangement"
by the author, "no other criteria shall be applied to
determine [a database's] eligibility for that protection"
(3.2). Because the author or authors labored and invested
in the database and arranged its contents, they have the right
to copyright the database for 15 years. While the public may
still use the contents of the database, reproduction of the
"selection and arrangement" of the data would presumably
be an infringement. This is significantly broader protection
than the United States has been willing to afford the compilers
of databases, and has forced many European countries, such
as Germany and Spain, to significantly increase the copyright
protections afforded them (cf. Hugenholtz). Thus, the European
conception of moral rights has led them to drastically expand
copyright in the new electronic age.
While not always a perfect fit, the distinction between Economic
Right and Moral Right generally describes the difference between
the ideological underpinnings of American and European copyright
laws. American Law is much more concerned with the work as
a market commodity, whereas European law tends to view the
work as an extension of the author's personality, and therefore
affords broader protections with a lower creative threshold.
Thus, while the difference is sometimes slight, it is important
to understanding the landscape of international intellectual
Hugenholtz, P. Bernt. "The Database Right File."
Joyce, Craig, Marshall Leaffer, Peter Jaszi, and Tyler Ochoa.
Copyright Law. 6ed. Newark: LexisNexis 2003.
O'Connor, Sandra Day. Feist Publications, Inc. v. Rural Telephone
Services Co., Inc. 27 March 1991. 499 U.S.
Samuels, Edward. The Illustrated Story of Copyright. New
York: St. Martin's P 2000.
The European Union "Database Directive" can be
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