English subtitles for clip: File:William Fisher, CopyrightX- Lecture 2.1, Fairness and Personality Theories- Introduction.webm

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Hello, I'm Terry Fisher.

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This is the second in a series of 12
lectures prepared during the winter

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and spring of 2013 on
the subject of copyright.

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The first lecture examined
three aspects of the foundation

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of copyright law-- the set
of multilateral treaties

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that set limits on the freedom
of each country in the world

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to formulate its own laws
on this topic; the concept

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of originality, which is required
for copyright protection;

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and the distinction between
ideas, facts, and expression,

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which operates to exclude important
kinds of intellectual property

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from the ambit of copyright.

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This second lecture turns from
copyright law to copyright theory.

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By theory, I mean arguments
concerning when and why copyrights

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should be created, and what the scope
or limit of those rights should be.

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Next week in the third lecture,
we'll return to the law of copyright.

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Specifically, I'll examine
the rules in the United States

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and in other countries that
determine what kinds of works

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fall within the zone of
copyright protection.

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Let me remind you briefly of the
format and logistics of these lectures.

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Each will last between
60 and 90 minutes.

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This one will probably be a bit
shorter than the first lecture.

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Each of the lectures will be accompanied
by a fair amount of illustrative,

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graphic, and audiovisual materials.

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So it's best if you watch the
recordings of the lectures on a computer

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or other device with a fair size screen.

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The most important of those
supplementary materials

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will consist of two
maps that I've prepared,

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using the MindManager software program.

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The map that will accompany this
particular lecture is called,

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Theories of IT, which is,
as I'm sure you know by now,

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is the customary abbreviation
for intellectual property.

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The heart of the map is
shown on your screen now.

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I'll be displaying the native version
of the map during this lecture.

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But I've also prepared
a read-only PDF version,

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which can be downloaded from my
home page, the address of which

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is tfisher.org.

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That's t, f, i, s, h, e, r dot org.

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Because I modify the map frequently,
if you find it useful in the future,

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you should check my website
on occasion to ensure

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that you have the most current version.

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So now let's turn to the topic for
today, which as I've indicated,

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is copyright theory.

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As I've just mentioned,
by theory, I mean nothing

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more than arguments concerning when
and why copyrights should be created,

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and what the scope or limits
of those rights should be.

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Before zeroing in on the
specific theories that

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will occupy us during
this lecture, I should

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say a bit more about what these
theories do and why they matter.

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Here's the first and most
obvious role of theory.

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As you might expect, when expanding
or revising copyright law,

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lawmakers frequently
deploy arguments concerning

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how much legal protection
creative works ought to get.

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When engaged in debates of these
sorts, lawmakers, or their advisers,

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sometimes advert directly
to formal theories developed

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by economists, political theorists, and
philosophers that address that issue,

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and even more often to
less formal variants

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of those theories in general
circulation in popular discourse.

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The result is that,
in order to understand

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how copyright law has assumed
over time its current form

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and how it's likely to
evolve in the future,

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you need to know, among other
things, the content of the theories

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that the lawmakers in
practice attend to.

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The next role of theory
is more instrumental.

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As you saw in the last lecture,
and as you will see frequently

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in future lectures, crucial doctrines
in copyright law remain ambiguous.

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As a result, lawyers,
arguing for their clients,

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frequently are obliged to
make normative arguments

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about what the law should look like.

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Consequently, to be an effective
advocate, or an informed litigant,

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again you need to know the contents
of the available theories that

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pertain to the appropriate
scope of copyrights.

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It's not enough to know what the law is.

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You have to be able to argue
effectively about what it should be.

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The third role of theory is,
in my view, the most important.

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My goal is to help you make your
own informed judgments concerning

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the respects in which our current
copyright system is socially

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beneficial or pernicious and
where the law should go tomorrow.

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This is a subject that everyone
has a stake in, not merely lawyers.

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Copyright law is changing very rapidly.

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Its impact on the economy
and culture is large.

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Public debate, concerning
its appropriate ambit,

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is increasingly intense.

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My hope is that by the
end of this course,

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you will be able to participate in that
debate, intelligently and effectively.

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To do so, you need to know some theory.

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Historically, there have been four
main clusters of copyright theories.

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Theories of the first
type focus on fairness.

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They argue that the
law should be crafted

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to give authors what they deserve.

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In other words, the rights or rewards
to which authors are morally entitled,

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either because they worked
hard or because they

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have contributed
importantly to our culture.

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Theories of this sort
tend to be somewhat more

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popular and influential in common
law countries, such as Great

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Britain and the United States,
but they have grip everywhere.

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Theories of the second
type focus on personality.

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They argue that the law should
be crafted to give people

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the rights or powers or
protections they need in order

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to fully realize or enjoy personhood.

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These theories tend to be somewhat
more popular in civil law countries.

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But they have increasing
influence in other jurisdictions,

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including the United States.

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Theories of the third sort focus not
on the interest or moral entitlements

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of individual creators, but on
the welfare of society at large.

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They contend that copyright
laws can and should

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be crafted to produce the greatest
good of the greatest number.

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The way that familiar utilitarianism
criterion is usually translated

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is that the law should
create a system of incentives

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that will induce potential authors to
generate works from which we will all

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benefit, and then make the fruits
of those efforts widely available.

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In other words, the law should
combine in an optimal mixture.

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On the one hand, stimuli for creativity.

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And on the other, mechanisms
for distributing creative works

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to consumers.

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Theories in the fourth cluster similarly
look to the well-being of society

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at large, but define that
well-being more capaciously.

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They contend that the
law should be crafted

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so as to foster a just
and attractive culture.

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In determining what a just and
attractive culture would be,

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these theories do not limit themselves
to aggregate consumer welfare measured

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by what consumers
themselves currently want.

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But instead, seek to
identify and cultivate

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conditions that will support
widespread human flourishing.

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So those are the four approaches.

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The labels that we will
use for the four clusters

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are fairness, personality,
welfare, and culture.

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All four of these
theories, as we will see,

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are branches or variants
of broader theories,

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dealing with intellectual
property rights

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as a whole, which in turn are branches
of even more general arguments dealing

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with property rights of all kinds,
including property and land-- commonly

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known as real property-- and
tangible personal property.

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The roots of these four
arguments, as we will see,

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are old, extending back at least
as far as the 17th century.

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But many of the applications of those
theories to intellectual property--

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and specifically to
copyright-- are quite recent.

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I've been using the term
cluster deliberately.

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It's a mistake, as I'll
try to show you, to think

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of these theories as
unitary and determinant.

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It's an understandable mistake, because
some of the theorists themselves

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claim to have identified
the one true theory

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and to be capable of generating,
from their preferred approach,

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unique correct answers to every
specific issue that arises in the law.

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That's a very ambitious contention.

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And in my view, it doesn't hold up.

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But the element of
openness, or indeterminacy,

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in each of these theories does
not mean that they are pointless.

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Rather, each one offers a set of
concerns or issues that merit attention

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and deepens our analysis of
those concerns and issues.

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This power to set agendas
and to guide and enrich

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analysis-- I'll try to show--
can be extremely helpful.

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So with those cautionary
words in mind, let's

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wade into the first of the approaches.