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Economic Right, Moral Right, and Databases

Copyright protections are ubiquitous to contemporary Western societies, but the rationales behind them are widely divergent. The two basic categories of defense for copyright are the doctrine of Economic Right and the doctrine of Moral Right. Economic Right maintains that copyright protections are intended to encourage innovation by protecting what is rightfully the property of the creator because of his labor and "creative spark," and is thus concerned more with balancing the rights of creators with market access. On the other hand, Moral Right views the work as being in some way an extension of the creator's self, and therefore sees a need for more expansive protections. This difference generally represents the difference between the American (economic) justification and the European (moral) justification, and is well illustrated by the differing approaches of the United States and the European Union to the question of databases.

Economic Right doctrine arguably developed from the philosophical lineage of Adam Smith and John Stuart Mill and finds the primary purpose of copyright in its status as a tool for maintaining a duly competitive market. To illustrate, market economics recognizes intellectual property as a public good which is: 1) non-excludable; and 2) non-rivalrous, meaning that more than one person can enjoy the property without excluding one another from its benefits. Copyrights, though monopolies for a period of time, are therefore tolerated because authors and inventors would, arguably, have no market incentive to create absent the right to exclude others from their works There has long been a debate in the United States over whether one should hold more closely to John Locke's view of property as a perpetual right in personhood, which is borne of one's mixing his/her labor with nature , Indeed, many amendments to copyright laws have been made that bring the United States closer to European standards. However, the general lag between a European expansion of copyright privileges and an American one is due to a long-standing interest in maintaining markets rather than providing for some abstract moral rights. The fundamental components of copyright based upon the doctrine of Economic Right are that it provides rights for a limited time (although this is being progressively dispensed with in American law) and that it protects the exclusive right to copy, distribute, and sell the work during that time. Over the course of the law's development, the exclusive rights to create derivative works, to perform a work publicly, and to display it publicly were added (cf. Samuels, 167-169). These rights are generally bound by a "first sale" limitation under which the exclusivity regarding distribution and display is generally terminated after the sale of the physical work, with a few exceptions (cf. Samuels, 168-169). The limited scope, and originally the limited time (28 years), allowed for the author and publisher to enjoy the profits for the early run of the work while preventing copyright regulations from obstructing the free use of new ideas and thereby inhibiting the market process, which was the most important factor for the Utilitarian mindset. However, the underpinnings of European copyright have a slightly different emphasis.
The doctrine of Moral Right (frequently seen in French as droit morale) is a significantly broader construction of copyright. While economic rights can be bought and sold, and are connected to the "work" as a commodity, moral rights are viewed as something intrinsically possessed by the "author" of the "works" because of his "genius." As one textbook phrases it, the moral rights of authors with respect to their works are construed as "inalienable, natural rights, arising from a conception of the work as an extension of the author's personality" (Joyce, 608). While Federal Copyright law in the United States does not formally recognize moral rights, many states such as New York have statutes which recognize such rights of visual artists, and the doctrine of Moral Right underlies many copyright laws in other nations, especially in Europe. The Berne Convention declares, in article 6bis, that the author has the right to prohibit any use of his work "which would be prejudicial to his honor or reputation" (qtd. in Joyce, 619). The rights generally afforded to authors are the right of integrity, that is, the right to prohibit mutilation or distortion of his work, the right of attribution (i.e. the right to be acknowledged as the sole creator of the work and to prevent anyone else from being called its creator), and the right of disclosure, which allows the author to decide when and in what form his work will be released to the public (cf. Joyce, 608). Other rights that are sometimes granted include the right of the author to recall all existing copies of the work (if, for example, his view of the subject matter changes) and a right to prevent excessive unwarranted criticism, but these rights are rarely recognized (cf. Joyce, 608). The difference between economic rights, which emphasize the qualities of the work as a commodity, and moral rights, which emphasize the way in which the work is an extension of the author's person, is very well illustrated by the differing approaches taken by the United States and the European Union with regard to the copyright of computer databases.
In the United States, the standards set by the Supreme Court case Feist Publications v. Rural Telephone Service Co (1991) are generally construed to limit the possibility of copyrighting a database beyond the exact layout and attributes of the original page. In the case, Feist Publications, while creating a phonebook for a larger region, incorporated the list of phone numbers in the phonebook published by Rural Telephone Service into its own without receiving permission to do so. The Supreme Court ultimately decided that Rural Telephone Services could not copyright the list of phone numbers, and not even the order in which they appeared. Justice O'Conner, writing for the seven-justice majority, declares that "there is nothing remotely creative about arranging names alphabetically in a white pages directory. It is an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course . . . It is not only unoriginal, it is practically inevitable" (10). Because of the obviousness of the arrangement, the phonebook "does not possess the minimal creative spark required by the Copyright Act and the Constitution," and therefore cannot be held as a copyrightable work (10). The Court sees the protection of mere facts as anti-competitive and therefore contrary to the intent of copyright law. Further, the Court dismisses the so-called "sweat of the brow" theory of copyright as outside of the scope of current law, and thereby removes a substantial portion of the argument for copyrighting databases while also eschewing any Lockean idea of property being attached to labor rather than to "originality" (9). Despite the attempts of a group of legislators, every attempt since Feist to pass intellectual property protections specifically for databases has failed to pass Congress (cf. Joyce, 270-272). Because the "work" is not sufficiently "original," the United States is uncomfortable imposing copyright regulations which could impede the market's access to the data contained in the databases. The priority here is to assess the degree to which the protections help or hurt the market, and therefore the United States refuses to acknowledge the right to copyright data. This has not been the case in Europe, where most countries have come into conformity with the European Union's Common Position on the protection of databases as intellectual property.
Directive 96/9/EC of the European Parliament and the Council of the European Union (11 March 1996) requires member states to provide intellectual property protections for databases and other Internet compilations. Among the many "whereas clauses" stating the reasons for the law is the following, "Whereas copyright remains an appropriate form of exclusive right for authors who have created databases" (5). The European Union has construed the database as a form of "authorial" creation in a way that the United States is unwilling to do. Because of this, the authors of such databases must be granted copyright in the same way as authors of books. Article 3 of the directive explicitly states that databases "by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation" (3.1). It further states that, outside of the "selection and arrangement" by the author, "no other criteria shall be applied to determine [a database's] eligibility for that protection" (3.2). Because the author or authors labored and invested in the database and arranged its contents, they have the right to copyright the database for 15 years. While the public may still use the contents of the database, reproduction of the "selection and arrangement" of the data would presumably be an infringement. This is significantly broader protection than the United States has been willing to afford the compilers of databases, and has forced many European countries, such as Germany and Spain, to significantly increase the copyright protections afforded them (cf. Hugenholtz). Thus, the European conception of moral rights has led them to drastically expand copyright in the new electronic age.

While not always a perfect fit, the distinction between Economic Right and Moral Right generally describes the difference between the ideological underpinnings of American and European copyright laws. American Law is much more concerned with the work as a market commodity, whereas European law tends to view the work as an extension of the author's personality, and therefore affords broader protections with a lower creative threshold. Thus, while the difference is sometimes slight, it is important to understanding the landscape of international intellectual property debates.

Hugenholtz, P. Bernt. "The Database Right File." http://www.ivir.nl/files/database/index.html.

Joyce, Craig, Marshall Leaffer, Peter Jaszi, and Tyler Ochoa. Copyright Law. 6ed. Newark: LexisNexis 2003.

O'Connor, Sandra Day. Feist Publications, Inc. v. Rural Telephone Services Co., Inc. 27 March 1991. 499 U.S.

Samuels, Edward. The Illustrated Story of Copyright. New York: St. Martin's P 2000.

The European Union "Database Directive" can be found here.

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This page last updated on: Friday, 20-Oct-2006 13:15:16 EDT