Copyrights are more than just federal “privileges.”

[Commentary] On July 1st, the American Enterprise Institute’s panel discussion, Copyrights and Innovation: Understanding the Debate, provided a good overview of the differing perspectives of copyright skeptics and supporters.

However, one set of closing remarks made a critical mistake worth correcting. It was argued that US copyrights are mere “privileges,” because they are protected only by a federal statute -- not by the state common-law claims (and statutes) that protect other private property rights. It was thus argued that if Congress repealed the federal copyright act, then the “privilege” of copyrights would cease to be legally protected by US laws.

But this copyright-is-just-a-federal-privilege argument suffers from at least two fatal defects.

First, it just got US copyright law dead wrong. Some copyright skeptics make this error because the Supreme Court, in Wheaton v. Peters, rejected the idea of federal common-law copyrights.

Second, the idea of abolishing the private copyrights of authors is not really some innovative, liberating, thought-experiment recently concocted by copyright-skeptical academes.

Developed representative democracies like the United States now usually rely on four cultural systems to produce expressive works: (1) an academic system; (2) a philanthropic system; (3) direct government funding of particular works; and (4) a commercial-production system. Copyright laws can interact with all four systems, but they are indispensable only to the fourth -- the commercial-production system.

[Sydnor is a visiting fellow with AEI’s Center for Internet, Communications, and Technology Policy]