Does copyright have a notion of "progress"?

Is there a notion of “progress” with respect to IP, and especially copyright? Let’s start from the beginning (1787)-- Article 1, Section 8, Clause 8 of the U.S. Constitution empowers the United States Congress

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” 

American in origin it may be, but the clause enjoys worldwide resonance. Put in modern terms, copyright seeks to promote creative works while patents promote invention. And so it remained for over 200 years or so—copyright has protected works from unauthorized reproduction and presumably thereby encourages creative works, while patents protect inventions and presumably thereby encourage the disclosure of useful ideas. As such, there appears to be symmetry between copyright and patents—each protects a presumed separate and distinct type of mental act intended to achieve a certain kind of desired outcome.

At some point in the mid to late-20th century, however, patents no longer were simply the legal means to acquire legal rights in an invention, but became intertwined with the notion of innovation. Joseph Schumpeter (“creative destruction”), here, and here, and Robert Solow, here, were key in putting innovation squarely in the centre of economic thought and, at some point, the patent system was bolted on to the notion of innovation. The result was a three-part arrangement, whereby the patent system was viewed as not only encouraging and protecting invention, but more generally enhancing innovation. What is important here is that the underlying the notion of innovation is rooted in the idea of progress. Progress is measured in part by more and better innovation and patents are part of this process. Even if the unbridled 19th notion of progress had taken a series of body blows in the 20th century, and even if the precise nexus between patents and innovation has still not been empirically established, the overall view of the patent system is clear; patents are part and parcel of innovation and progress.

But the vector for copyright and progress is much murkier. Let’s take the movie industry. Consider the year 1939, which is often described as the greatest year ever for the cinema. Against the backdrop of increasing political and economic turbulence, it never ceases to amaze that all of the following movies-- Gone With the Wind, The Wizard of Oz, Dark Victory, Goodbye, Mr. Chips, Love Affair, Mr. Smith Goes to Washington, Ninotchka, Of Mice and Men, Stagecoach and Wuthering Heights—premiered in that most trying of years, here. Even after this Kat ponders once again what Dorothy found over the rainbow, whether Rhett Butler did not really give a damn, how John Wayne managed to build his acting career as the escaped convict on the stagecoach, and did Jefferson Smith ultimately stay in Washington, is the more compelling question—does it make sense to talk about progress in the cinema? Are films today better than those that premiered in 1939? What about literature, art and music generally? The answer is clearly no, such that the notion of progress seems quite unrelated to copyright-protected creations of the mind.

Reflecting further on this question, it seems to this Kat that the best way to view progress in copyright is to see it as the handmaiden of innovation. Copyright laws came about in response to the rise of the printing press, which posed both challenges and opportunities for authors and publishers with respect to reproduction and distribution. Every subsequent pressure point on copyright has been in response to technological innovation in connection with the reproduction and distribution of creative works. If there is a notion of progress with respect to copyright, therefore, it lies within the ability to copyright to fashion arrangements that will be helpful for authors and publishers (in their various modern forms) in this context.

Against this background the copyright laws may, or may not, successfully respond to the digital world and the technological challenges that it poses. If “yes”, then progress in the sense that copyright has once again navigated the challenges of reproduction and distribution; if “no”, then progress with respect to copyright will have been arrested. But this a long way from the kind of progress connected to patents. At the most, therefore, progress in copyright is measured, if at all, by whether a critical mass of works continue to be being created. The year 2014 may not be as good a year for movies as the year 1939, but the fact that the movie industry is still robust is ultimately what matters. This may not be “progress” in the patent sense, but it is certainly worth protecting and encouraging.