A Note on Incentives, Rights, And the Public Domain in Copyright Law. (Symposium: Creativity and the Law‪)‬

I. A GAP IN MINIMALIST COPYRIGHT DISCOURSE The idea that the purpose of copyright law is to provide incentives for creativity is among the most fundamental and most established ideas in North American copyright discourse. (1) There can be no doubt, of course, that copyright discourse in North America is highly contested. Some regard it as nothing less than the site of so-called "copyright wars," of intense struggles--intellectual as much as practical, political as much as theoretical--between copyright maximalists and copyright minimalists, advocates of high copyright protection and advocates of low copyright protection. (2) This manifest presence of vibrant, vigorous, and vivid controversy, however, obscures the depth of the latent agreement that frames it. Few, if any at all, would contest the bedrock idea that copyright law is about providing incentives for creativity. (3) The pervasiveness of the hold that instrumentalism has over the North American copyright imagination is paralleled only by the ease with which that imagination summarily rejects or dismisses rights-based accounts of copyright law--accounts rooted in a vision of the inherent dignity of authorship.