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Probably the most profound and widely debated philosophical issue amongst scholars of copyright law, is its purpose. Some take the approach of looking for coherent ''justifications'' of established copyright systems, while others start with general ethical theories, such as Utilitarianism and try to analyse policy through that lens. Another approach denies the meaningfulness of any ethical justification for existing copyright law, viewing it simply as a result (and perhaps an undesirable result) of political processes. Another widely debated issue is the relationship between Copyrights and other forms of " Intellectual Property ", and material property. Most scholars of copyright agree that it can be called a kind of Property , because it involves the Exclusion of others from something. But there is disagreement about the extent to which that fact should allow the transportation of other beliefs and intuitions about material possessions. There are many other Philosophical questions which arise in the jurisprudence of copyright. They include such problems as determining when one work is "derived" from another, or deciding when information has been placed in a "tangible" or "material" form. JUSTIFICATIONS FOR COPYRIGHT Legal scholars often approach copyright in search of a coherent ethical justification for its existence and character. This approach may seem to be backwards -- it might make more sense to start with an objective and then examine the law against it -- but it is widely practised. Thus, the Normative or ethical theories that might naively be regarded as tests for copyright law to pass are often called `justifications' of it. Natural rights Natural Rights are linked to the logic of Property . John Locke is often cited as an authority, although it is not clear that Locke actually viewed copyright as a natural right. Personality Rights are the basis of German copyright law. This position regards copyrightable works to be extensions of the author's personality. The author is given certain powers to control those works on account of his or her connection to them. Consequentialist theories Consequentialist theories of copyright hold that we should have the laws that will produce the `best' results for society. The most common consequentialist position is Utilitarianism , which defines the `best' situations to be those in which people are in total as happy or fulfilled as possible. A related class of theories is called Instrumentalism ; it holds that copyright law must exist for clear, coherent and necessary purposes, without being so strict as to require that it maximise some kind of `goodness' in its outcome. Consequentialism in the United States Consequentialism or instrumentalism is, at least in theory, the legal foundation of copyright law in the United States. Article One of the United States Constitution authorizes Congress to "''promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries''". Many authors thought that this wording would actually require U.S. copyright laws to serve the purpose of `promoting the progress of science and useful arts'. But with the Supreme Court's ruling in Eldred V. Ashcroft , it became clear that such a consequentialist foundation need not have many practical consequences. OPPOSITION TO COPYRIGHT Critics of copyright as a whole fall broadly into two categories: Those who assert that the very concept of copyright has never been of net benefit to society, and has always served simply to enrich a few at the expense of creativity; and those who assert that the existing copyright regime must be reformed to maintain its relevance in the new Information Society . The French ''droit D'auteur'' ("Rights of the Author"), which influenced the 1886 Berne Convention For The Protection Of Literary And Artistic Works , must also be noted as a significant alternative to the usual Anglo-Saxon concept of copyright. Among the latter group, there are also some who continue to agree with copyright as a way to grant authors rights, but feel that it "outlives its welcome" by granting copyright for too long (eg, far beyond the lifetime of the author), and is therefore of little direct benefit to him or her. The prolongation of copyright term is commonly attributed to effective corporate Lobbying , based on a desire for the continuance of a profitable monopoly. In the US, this is often phrased as a conspiracy to 'control the Mouse' (meaning Mickey Mouse , a copyrighted character controlled by the Disney Company and who would have moved into the public domain save for such an extension). To many critics, the general problem is that the current (international) copyright system undermines its own goal. |
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