Fisher lecture on the cultural theory of copyright: transcript

Key points

• Fisher recaps the fairness, personality and welfare theories of copyright before turning to the cultural theory.
• The cultural theory holds that law should foster a just and attractive culture and cares about distributive justice, not only individual desert.
• Fisher names the thinkers who shaped it, including Aristotle, Sen, Nussbaum, Marx, Tocqueville, and legal scholars such as Benkler and Cohen.
• He lists eight conditions of human flourishing, including life, health, autonomy, engagement, self-expression, competence, connection and privacy.
• Four cultural dimensions matter for copyright: diversity, a rich artistic tradition, education and participatory democracy.
• Digital remixing is expanding semiotic democracy, so copyright should be tuned to balance creator incentives with remixing.

Chapters

1. 0:14Recap of the first three theories of copyright
2. 3:15What sets the cultural theory apart
3. 6:45Fisher's bias and plan for the lecture
4. 7:56Thinkers behind the cultural theory
5. 9:37Human nature and the eight conditions of flourishing
6. 20:13How widely to make the good life available
7. 23:08Diversity, art and education in a nourishing culture
8. 26:16Participatory and semiotic democracy, and remix

Full transcript

0:14Hello, I'm Terry Fisher. This is the 10th of a series of 12 lectures on copyright. Links to the other lectures in the series and to the current version of the map that will accompany this particular lecture are available through my home page, the address of which is tfisher.org. As you know by now, there are four main theories of intellectual property in general and copyright in particular. The fairness theory, which finds inspiration in the work of John Locke, centers on the principle that the law should be organized to provide authors and inventors what they morally deserve.

0:53Somewhat more specifically, the law, seen from this perspective, should award them property interests or monetary rewards commensurate with their creative efforts. The fairness approach has disproportionate influence in the United States and other countries influenced by the common law tradition, but find some support throughout the world. The personality theory, which finds inspiration in the work of Kant and Hegel, is founded on the principles that intellectual products are extensions of the personalities of their creators, and that the law should be organized to respect and nourish the psychic bonds between creators and their expressive products.

1:35The dimension of copyright law that is most closely associated with personality theory is the set of so-called moral rights, which are most generously recognized and enforced in continental Europe and in other jurisdictions influenced by the civil law tradition. The third approach is the welfare theory, a branch of the broad philosophic tradition of utilitarianism. The welfare theory of copyright starts with the proposition that intellectual products are public goods, an unusual and especially important subset of products defined by two related characteristics.

2:09They are both non-rivalrous and non-excludable. Copyright law, seen from this angle, constitutes a mechanism employed by governments to prevent such public goods from being produced in less than socially optimal quantities. The general guideline that emerges from this philosophic tradition is that the law should be adjusted so as to combine optimally, on the one hand, incentives for innovation, and on the other hand, mechanisms for ensuring that the fruits of innovation can be consumed or reused by others.

2:45This theory has gained in strength in recent years. It is now the dominant approach to copyright law, at least in the United States, in part because of the resonance between it and the utilitarian tenor of the constitutional clause on which intellectual property rights founded in the United States, and in part because this theory has been refined and popularized by an influential group of scholars, some of whom have since become judges. We come finally to the fourth theory.

3:15This is currently the least well-known and least influential of the approaches, is, but it is, I think, growing in strength, both among scholars and among lawmakers. It centers on the principle that copyright law, like other fields of law, should be organized so as to foster and sustain a just and attractive culture. The cultural theory incorporates some aspects of the other three theories, but, as we'll see, also stands apart from them on important dimensions.

3:47Like the welfare theory, it's prospective and consequential. In other words, it urges us to create a legal framework that will enable or prompt people to behave in ways that will give rise to a more attractive society in the future. But it differs from welfare theory in a fundamental respect. It's not founded on the principle of consumer sovereignty, the notion that we should measure people's well-being by what they themselves currently desire or loathe.

4:17In other words, the cultural theory takes the risky and controversial position that people are not always the best judges of their own interests and that the law should sometimes guide them in directions they are not currently inclined to go. Like the personality theory, the cultural theory tries to identify and advance fundamental human needs. However, as we'll see, the set of needs that figure in most current versions of cultural theory is different from the set that figures in personality theory.

4:52Cultural theory is also much less willing to privilege the psychic bonds between artists and their creations over all other considerations. Like the fairness theory, and unlike the welfare theory, cultural theory is intensely concerned with justice. However, it's less interested in individualized conceptions of justice, in other words, attempts to give individual workers or authors what they have earned through their labor, and more concerned with distributive justice, in other words, ensuring that all persons are given fair shares of material resources and, above all, fair access to the opportunities necessary for full human flourishing.

5:36In the second segment of this lecture, it will become apparent that these differences in orientation prompt advocates of cultural theory to recommend a pattern of reforms to copyright law that is significantly different from the pattern commended by any of the other approaches. As my tone undoubtedly conveys, I myself find this approach to be the most congenial and powerful of the four. The result is that my presentation of this approach will be less dispassionate than were my presentations of the other three.

6:10I'll do my best at the end to identify the main weaknesses of cultural theory, but it would be hopeless for me to conceal the fact that I find it to be, on balance, the most powerful of the four approaches. Needless to say, you should make your own judgments concerning the merits and demerits of this perspective. One of the reasons why I have waited until now to present this argument to you is to ensure that you are familiar with the rival approaches and their doctrinal implications, and thus inoculated against my favoritism.

6:45Here's how I plan to organize my presentation. In the first segment of the lecture, I will outline the premises of this approach. In the second segment, I will canvas various issues in copyright law, with which you are now familiar, and suggest how a cultural theory might illuminate them. In the third, I will address a few possible reforms outside of copyright law that the cultural theory might commend, and then discuss the principal limitations and vulnerabilities of this argument. So let's begin.

7:19At the outset, it should be emphasized that, like each of the other three approaches, cultural theory is best understood as a family of related arguments, not a single, tightly-knit, determinate argument. Put differently, it's an orientation, a way of thinking about life, culture, and law. Not an algorithm. Partly as a result, people who adopt this approach disagree among themselves, just as, as we have seen, the economists who dominate the welfare approach and the philosophers who dominate the fairness approach also disagree among themselves.

7:56Who then are the people who have contributed to the cultural theory? They are surely not limited to law. Indeed, most of the inspiration for this approach comes from outside law. In philosophy, it has deep roots in the work of Aristotle and more modern expression in the arguments of Amartya Sen and Martha Nussbaum. In political theory, roots can be found in the writings of the 18th century commonwealth men, such as Trenchard and Gordon in England, the early Karl Marx, Alexis de Tocqueville, Hannah Arendt, and modern communitarian theorists.

8:35Recently, the work of several social psychologists, including Edward Desi, Richard Ryan, Martin Seligman, and Christopher Uttman, have lent substantial support to this perspective. Among legal scholars, and specifically among the subset of legal scholars who focus on intellectual property, important contributors include Keith Aoki, Yochai Bankler, Julie Cohen, Neil Netenow, Madhavi Sundar, and Tala Syed.

9:06Some of their works are listed in the map. If you're curious about their perspectives, follow the links. My own work in this area began with an essay I wrote on fair use in 1988 and has continued to guide my exploration of different dimensions of intellectual property ever since. Indeed, I find myself closer to this approach now than I did a decade ago. During the remainder of this lecture, I will focus on my own particular variant of cultural theory.

9:37These other scholars are, as I say, pursuing analogous projects, but likely none would agree with all aspects of my argument. The most fundamental of the premises upon which the argument is based is the proposition that there exists such a thing as human nature. It's hard to discern, but real and stable. Because of their nature, people flourish under some conditions and suffer or atrophy under others. From those observations emerges a normative guideline.

10:10Social and political institutions, including law, should be organized so as to facilitate human flourishing. Eight conditions contribute to human flourishing. Not all eight are essential to a full and satisfying life. Indeed, it's doubtful that anyone has ever fully experienced on a sustained basis all eight. Life isn't perfect, but these are the components of a good life. The most obvious is life itself. The flourishing is possible only if you are alive, somewhat more specifically, if you are able to live a life of normal length.

10:46Nuances lurk in the adjective normal, but we need not tarry to consider them here. The second, nearly as obvious, is health. Illness impairs flourishing. Freedom from psychic and physical pain is one of the conditions that contributes to living well. As Martha Nussbaum observes, health in this sense includes reproductive health. Now things begin to get more subtle and controversial.

11:18A substantial degree of autonomy is important to human flourishing. No one, of course, is wholly self-made or self-directed, But a life without a substantial degree of self-determination is a life not fully lived. George Keiteb, the person from whom I first learned political theory, put the point memorably. One's dignity resides in being, to some important degree, a person of one's own creating, making, choosing, rather than being merely a creature or a socially manufactured, conditioned, and manipulated thing, half animal and half mechanical, and therefore, wholly socialized.

12:01KTB, in this passage, was drawing in part on the work of John Stuart Mill, who also emphasized the constitutive value of choice. The same theme figures heavily in the writings of many other liberal theorists, including John Rawls and Ronald Dworkin. It also infuses Yochai Bankler's commentaries on the affordances enabled by participation in information networks. It's important to note three refinements of this idea.

12:31First, autonomy does not mean freedom from social connections, on the contrary. It means, rather, that the bonds and communities through which we define ourselves are at least partly chosen, not inherited or coerced. Second, the dimension of autonomy that turns out to contribute most to well-being is the subjective feeling of self-determination, which is only partly dependent on the objective number of options that one has.

13:03Third, autonomy not only makes one feel better, it's also adaptive. Social psychologists have found that autonomous motivations, meaning motivations arising out of voluntary choice, increase job performance, particularly when the task at issue is complex and requires creativity. Of course, one can have too much of a good thing, even autonomy, as Barry Schwartz has shown. But a substantial degree of self-determination is key to the good life.

13:36The fourth of the conditions conducive to flourishing is engagement, by which I mean participation in shaping an important dimension of one's environment. Many groups of theorists have emphasized one or another aspect of this principle. Karl Marx, for example, placed great weight in his insightful early writings on engagement in work. People ought to have access to what he'd called meaningful work, by which he meant work that requires skill and concentration, presents the laborer with challenges and problems he can overcome only through the exercise of initiative and creativity, and is part of a larger project he considers socially valuable and must take into account in making his decisions.

14:23Notice that the fact that the job is connected to a socially valuable project is part of this vision, but not the whole of it. Fulfillment comes only through participation in the choices that determine the direction of the venture and whether it succeeds. That's where engagement lies. Notice also the beneficial role played in this vision by risk. Certainty that a venture will succeed enervates engagement. But work is not the only arena in which one can find fulfilling engagement.

14:57Another is politics. This theme figured prominently in the work of classical Republican political theorists, including the pamphleteers and activists who helped power the American Revolution. They celebrated what they called civic virtue, a key component of which was active participation in politics. But not any sort of participation. Rather, they privileged participation in a particular posture, altruistic, deliberative, genuinely committed to the welfare of the polity as a whole, not to the advancement of self-interest or factional interest.

15:33Again, we see the conjoining of involvement, choice, and last but not least, commitment to a larger enterprise one believes to be socially beneficial. In Martin Seligman's words, using one's signature strengths and talents to belong to and serve something bigger than oneself. Within legal scholarship, this theme found expression in a highly influential set of articles during the 1980s and 1990s that sought to reorient constitutional law and administrative law around the idea of altruistic deliberative citizenship.

16:11Key figures in that surge were Frank Michaelman and Cass Sunstein. Sunstein later went on to become a central figure in the Obama administration. Yet another arena for self-fulfilling engagement is culture itself. We live today in a cloud of symbols and images that, like our jobs and our polities, are all too often out of our control. The result is cultural alienation analogous to alienation in the workplace.

16:44Retaking some degree of responsibility and control for the shape of that semiotic environment is another way of achieving engagement. Each of these groups of theorists argued vigorously for the benefits, individual and collective, of the particular kind of engagement they celebrated. My own view is that no one of these forms of participation has pride of place and that it's hopeless to try to do them all. There just aren't enough weekends.

17:14The more general insight latent in all three variants is that active, risky, altruistic engagement in the shaping of a significant aspect of one's world is key to human flourishing. Closely related to engagement, in this sense, is self-expression. Projecting oneself into or onto the world has long been regarded as constitutive. It's at this point that the cultural theory of copyright overlaps most clearly with the personality theory.

17:46Indeed, the reflections I discussed in the second lecture by T.H. Green and others concerning the importance of preserving opportunities for self-expression could be simply incorporated here by reference. A more recent manifestation of the same theme can be found in the work of Larry Lessig, in particular, his book on remix. Competence, we know intuitively, is also crucial to human flourishing. We feel better and we do better when we have a sense that we are capable of performing the tasks we address.

18:22Not that we are certain of success, but that we have the requisite talents and skills. A large body of literature in social psychology confirms this intuition. A sense of competence is key to learning. And a sense that one is incompetent is strongly correlated with depression. Again, the subjective feeling of competence is at least as important as the reality for both performance and well-being. This fact creates interesting complications and possibilities when combined with the fact that assessments of competence are often distorted in systematic ways.

19:00Unskilled people, psychologists tell us, typically overestimate their competence, while highly skilled people typically underestimate their competence. But this is a nuance, not the core point. The seventh theme in the list should not be surprising. We flourish through connection with others. We atrophy alone. The vocabulary employed to express this age-old insight in different disciplines varies. A philosopher, such as Nussbaum, might use the term affiliation.

19:32The psychologist, Desi and Ryan, use the term relatedness and place it on a par with autonomy and competence is a fundamental human need. In political theory, the theme finds clearest expression in communitarian arguments. Finally, privacy. On this issue, like self-expression, the cultural approach of copyright overlaps with the personality theory. Both invite attention to the fundamental human need for relief from the crowd, access to settings conducive to experimentation, and intimacy.

20:13The list on your screen is rough and tentative. It is grounded in millennia of reflection and experience, but it is still being tested and refined. The eight categories are not watertight. On the contrary, these conditions reinforce and run into one another. That in turn means that the set of functionings essential to human flourishing could be organized somewhat differently. But with those qualifications, there's remarkable convergence by scholars working in many disciplines concerning the importance of these eight things to a good life.

20:47Having cataloged briefly the conditions that contribute to human flourishing, the next issue is how widely available we should strive to make those conditions. An enormous literature within political theory addresses that question. Many different criteria have been proposed for how much equality or inequality with respect to these or any other resources is morally justified. Three of the many contending positions are listed in the map. Exploring this literature would take us very far afield.

21:20Fortunately, for present purposes, we need not do so, because there's broad, although of course not unanimous, agreement among the contending camps that all societies today are characterized by unjustifiably high levels of inequality. In other words, our task for the foreseeable future is to adjust our institutions so as to make the eight conditions constitutive of a good life more widely and equally available. At some point, the issue of just how equal will become salient, but unfortunately not in the near term.

21:57So when considering modifications of copyright law, we can postpone efforts to resolve this fundamental issue decisively and instead commit ourselves to substantial movement in the direction of equality. How, then, could we make a good life more widely available? Many possible initiatives undoubtedly spring to mind. Suppress both organized and disorganized violence. Increase the availability of health care and vaccines.

22:28Reorganize workplaces to increase opportunities for genuine participation. And so forth. It would be foolish to attempt here to itemize all of the political and legal reforms that would help advance the goals I have posited. Although some initiatives are obvious, others are not at all. I'm just now beginning work on a book tentatively entitled Good Life, Good Law that will attempt a partial survey of this large landscape. It will likely take years. For the time being, we can and should limit our attention to dimensions of reform that are likely to implicate the subject at hand, namely copyright.

23:08As you might expect, those dimensions all involve improving our culture, broadly defined. Four dimensions of culture seem especially closely connected to realization of the aspirations we have identified thus far. The first is cultural diversity. Diversity fosters human flourishing in many interlocking ways. It increases both the fact and the experience of choice. Thus, at least if those choices concern things that matter to the chooser, diversity increases autonomy.

23:42Diversity also increases invitations and opportunities for self-expression and for engagement, two other dimensions of the good life. The way in which these themes reinforce one another was recognized long ago by Mill. The more multifarious the lifestyles and ideas on public display in a society, the more each of its members must decide for herself what to think and how to act, thereby developing her own mental and moral faculties and rendering the culture as a whole even more rich, diversified, and animating.

24:20For many of the same reasons, a rich artistic tradition sustains opportunities for flourishing of many sorts. This point was made crisply by Ronald Dworkin, one of the foremost Anglo-American legal theorists. The more complex and resonant the shared language of a culture, the richer it is in the raw materials of representation, metaphor, and illusion, the more opportunities for creativity and subtlety in communication and thought it affords the members of the culture. This claim and the related notion that governments should actively seek to who can foster a rich artistic tradition is unlikely to shock Europeans, but it is far from universally accepted in the United States or many other countries.

25:05It should be. Third, education, it turns out, is the linchpin of the good life. Autonomy, engagement, self-expression, and competence are all dependent upon the kind of knowledge and skills that only education can provide. Recognizing that education is the preconditions for many dimensions of human flourishing has two important implications. First, it highlights the importance of ensuring that education is widely, ideally universally, available.

25:39Second, it should guide reform of extant educational systems. Our goal should be to enable and encourage lifelong learning that supports creativity, competence, and confidence. We currently fall far short of that. Technology is rapidly expanding our capacity to construct a system for vibrant, empowering, lifelong education available to people worldwide. We should adjust copyright law to facilitate that project, not impede it.

26:16The fourth dimension of a nourishing culture is democracy. By this I mean, to the extent feasible, participatory democracy, not representative democracy. There are two aspects of this theme. The first and more familiar is political democracy. There are, of course, well-known reasons, grounded in considerations of legitimacy and the quality of governance, for vesting political power in the people at large. I will not rehearse those arguments here. For present purposes, I'm more concerned with a less instrumental value of political democracy, the value that most impressed Tocqueville when he visited the United States in the early 19th century.

26:57Specifically, the beneficial effect of political engagement on the people who participate in governance. Active citizenship, in short, is good for the heart and the soul, as well as the polity. For essentially the same reason, we should strive to increase participatory democracy with respect to cultural meanings, what John Fiske, Michael Madow, and Jack Balkan have called semiotic democracy. This theme merits some more elaboration.

27:31During the 19th and 20th centuries, the cloud of images and symbols I mentioned a minute ago gradually, then rapidly, became increasingly dense. Equally important, control over the content of that cloud became increasingly concentrated, and fewer and fewer companies, advertising houses. And political consultants located in a few countries. The semiotic power, in other words, was held by fewer and fewer people. To be sure, the concentration was never total.

28:01As cultural populists point out, opportunities for cultural resistance, for recoding centrally fashioned and distributed symbols, survived. But those opportunities shrank. And the refashioned images almost never had the currency of the originals. Information technology not only is enabling radically new forms of education, as I just mentioned, it is also beginning to reverse this trend toward the concentration of semiotic power.

28:33Digital technologies are enabling an ever larger group of people to engage in remixing of cultural forms. Surveys done by my colleagues John Palfrey and Urs Gasser suggest that already roughly one in four young people worldwide now engage in remixing digital content into their own artistic creations. That number will surely climb. This is a trend that should be celebrated and facilitated Not denounced. It implicates favorably several of the dimensions of the good life.

29:06Specifically, it expands opportunities for autonomy, engagement, self-expression, competence, and connection. Now, to be sure, it's crucial that we not lose sight of the importance of preserving the incentives and rewards for the creation of the cultural artifacts that others can then remix. But there may be ways of tuning copyright law to reconcile these competing goals. That possibility, and many other potential reforms of the copyright system, we'll take up after the break.

Source and licence

Recording: File:William Fisher CopyrightX Lecture 10 1.webm by BerkmanCenter (2015-03-19), via Wikimedia Commons. Licence: CC BY 3.0.

The transcript is machine speech-to-text by the TidyTools Audio & video transcriber; the summary, key points and chapters were written by Claude from that transcript. Both may contain errors: check the recording before quoting it.