Traditionally, authors' copyright rights have been limited in order to promote the progress of science and the useful arts. However, authors today are increasingly employing additional protective measures that arguably are not subject to such limitations. Even if such extra-copyright measures are not limited like copyright protections, several principles underlying the copyright regime support imposing such limits on authors' rights. In this Article, based upon John Rawls's theory of justice as fairness, I develop a theory of justice between generations of authors. This theory requires that the rights of each generation of authors be limited for the benefit of subsequent generations of authors. This theory of intergenerational justice relates particularly to digital authors' increasing use of private ordering measures to create virtually unlimited rights, disregarding the interests of future authors while they continue to benefit from the limitations copyright law imposed on the rights of their predecessor authors. I contend that the use of such measures to establish unlimited rights is inconsistent with intergenerational justice obligations imposed upon authors to preserve the raw materials of the creative process for the benefit of future authors.
I begin by setting forth the principal tenets of a general Rawlsian theory of intergenerational justice, which sets forth a just savings principle under which the distribution of benefits and burdens within a society is determined without reference to an individual's generation. Under this "just savings" principle, individuals are obliged to forgo immediate gains where necessary to protect the interests of future generations. I then apply this intergenerational justice principle to intellectual property rights in creative works, contending that authors without knowledge of where they fall on a generational timeline would find it in their interests to limit authors' rights in creative works across the board. I next examine the limitations historically imposed by copyright law on authors' rights from the perspective of justice between authors, concluding that principles of intergenerational justice justifying limited creative rights are inherent in the jurisprudence of copyright limitations. The limitations of copyright protection effectively mandate the savings of certain elements and uses of the creative process to benefit future authors at the expense of present authors in order to preserve the raw materials of the creative process for subsequent authors.
In the Digital Millennium Copyright Act, Congress empowered authors to use technological measures to create for themselves virtually unlimited rights in their works. Authors are also increasingly resorting to contractual measures to create for themselves broad, perpetual rights in their works. Finally, Courts generally have been unwilling to read any limitations into such privately ordered rights. In order to carry forth into the digital realm the copyright regime's implicit commitment to justice between authors, Congress and the courts should impose substantial limitations on authors' rights irrespective of whether the work is protected by public or private ordering measures. Although the migration of creative works to the digital realm may require some recalibration of the limitations historically imposed on creators' rights, durational justice concerns require that the interests of future authors be protected. I propose several ways in which limitations should be imposed on authors' privately ordered rights so as to embody a form of justice between authors in the digital age.
GW Paper Series
GWU Legal Studies Research Paper No. 318; GWU Law School Public Law Research Paper No. 318
Dawn C. Nunziato, Justice Between Authors, 9 J. Intell. Prop. L. 219 (2002).