Authors' copyright rights have traditionally been limited, because such limitations were believed to be necessary to advance copyright law's constitutionally-mandated utilitarian purpose - "to promote the progress of science and the useful arts." But authors today - especially authors of digital works - are increasingly turning to extra-copyright measures, including encryption and "clickwrap" licenses, to customize their rights in their works of authorship. Because such privately-ordered rights are arguably outside of copyright law's framework, they are not necessarily subject to its utilitarian mandate, and need not be made subject to limitations imposed by copyright law on authors' rights. Even though such private ordering regimes may not be subject to copyright law's utilitarian mandate justifying limitations on authors' rights, other powerful justifications implicit in the copyright regime support the imposition of limitations on authors' rights. This article advances one such theoretical justification. Building upon the foundational work of John Rawls, who has articulated a theory of justice as fairness, the article develops a theory of justice between generations of authors. This theory requires that the rights of each "generation" of authors - including the rights that they might attempt to assert through private ordering measures - be limited for the benefit of subsequent generations of authors.
While not limited to authors' rights in digital works, the theory of intergenerational justice between authors the article advances is particularly relevant to the burgeoning private ordering regime, in which authors of digital works are increasingly using private ordering measures to create for themselves virtually unlimited rights - in disregard of the interests of future generations of authors - even while they are benefiting from the limitations copyright law has imposed on the rights of their predecessor generation of authors. Authors of electronic books, for example, are increasingly using "clickwrap" licenses and encryption controls to prohibit their readers from copying any portion of their books, even while these authors have benefited from incorporating elements of earlier works into their own works. Motion picture companies are increasingly using technological measures like encryption devices to control access to and copying of their films released on DVD, even while the filmmakers have benefited from copying elements of earlier works in developing their films. By the use of such private ordering measures, present-day authors are able to reap the benefits of the limitations on authors' rights previously imposed by copyright law, while casting aside any limitations on their rights for the benefit of future authors. The article contends that the use of such private ordering measures to establish unlimited rights in creative works is inconsistent with intergenerational justice obligations imposed upon authors to preserve the raw materials of the creative process for the benefit of future generations of authors.
Dawn C. Nunziato, Intergenerational Justice Between Authors in the Digital Age, 9 J. Intell. Prop. L. (2002).