 Hello, I'm Terry Fisher. This is the second in a series of 12 lectures prepared during the winter and spring of 2013 on the subject of copyright. The first lecture examined three aspects of the foundation of copyright law, the set of multilateral treaties that set limits on the freedom of each country in the world to formulate its own laws on this topic, the concept of originality, which is required for copyright protection, and the distinction between ideas, facts, and expression, which operates to exclude important kinds of intellectual property from the ambit of copyright. This second lecture turns from copyright law to copyright theory. By theory, I mean arguments concerning when and why copyrights should be created and what the scope or limit of those rights should be. Next week, in the third lecture, we'll return to the law of copyright. Specifically, I'll examine the rules in the United States and in other countries that determine what kinds of works fall within the zone of copyright protection. Let me remind you briefly of the format and logistics of these lectures. Each will last between 60 and 90 minutes. This one will probably be a bit shorter than the first lecture. Each of the lectures will be accompanied by a fair amount of illustrative, graphic, and audio-visual materials. So it's best if you watch the recordings of the lectures on a computer or other device with a fair size screen. The most important of those supplementary materials will consist of two maps that I've prepared using the Mind Manager software program. The map that will accompany this particular lecture is called Theories of IP, which, as I'm sure you know by now, is the customary abbreviation for intellectual property. The heart of the map is shown on your screen now. I'll be displaying the native version of the map during this lecture. But I've also prepared a read-only PDF version, which can be downloaded from my home page, the address of which is tfisher.org. That's T-F-I-S-H-E-R.org. Because I modify the map frequently, if you find it useful in the future, you should check my website on occasion to ensure that you have the most current version. So now let's turn to the topic for today, which, as I've indicated, is copyright theory. As I've just mentioned, by theory I mean nothing more than arguments concerning when and why copyrights should be created and what the scope or limits of those rights should be. Before zeroing in on the specific theories that will occupy us during this lecture, I should say a bit more about what these theories do and why they matter. Here's the first and most obvious role of theory. As you might expect, when expanding or revising copyright law, lawmakers frequently deploy arguments concerning how much legal protection creative works ought to get. When engaged in debates of these sorts, lawmakers or their advisors sometimes advert directly to formal theories developed by economists, political theorists, and philosophers that address that issue. And even more often to less formal variants of those theories in general circulation in popular discourse. The result is that in order to understand how copyright law has assumed over time its current form and how it's likely to evolve in the future, you need to know, among other things, the content of the theories that the lawmakers in practice attend to. The next role of theory is more instrumental. As you saw in the last lecture and as you will see frequently in future lectures, crucial doctrines in copyright law remain ambiguous. As a result, lawyers, arguing for their clients, frequently are obliged to make normative arguments about what the law should look like. Consequently, to be an effective advocate or an informed litigant, again, you need to know the contents of the available theories that pertain to the appropriate scope of copyrights. It's not enough to know what the law is. You have to be able to argue effectively about what it should be. The third role of theory is, in my view, the most important. My goal is to help you make your own informed judgments concerning the respects in which our current copyright system is socially beneficial or pernicious and where the law should go tomorrow. This is a subject that everyone has a stake in, not merely lawyers. Copyright law is changing very rapidly. Its impact on the economy and culture is large. Public debate concerning its appropriate ambit is increasingly intense. My hope is that by the end of this course, you will be able to participate in that debate intelligently and effectively. To do so, you need to know some theory. Historically, there have been four main clusters of copyright theories. Theories of the first type focus on fairness. They argued that the law should be crafted to give authors what they deserve. In other words, the rights or rewards to which authors are morally entitled, either because they've worked hard or because they have contributed, importantly, to our culture. Theories of this sort tend to be somewhat more popular and influential in common law countries, such as Great Britain and the United States, but they have grip everywhere. Theories of the second type focus on personality. They argue that the law should be crafted to give people the rights or powers or protections they need in order to fully realize or enjoy personhood. These theories tend to be somewhat more popular in civil law countries, but they have increasing influence in other jurisdictions, including the United States. Theories of the third sort focus not on the interest or moral entitlements of individual creators, but on the welfare of society at large. They contend that copyright laws can and should be crafted to produce the greatest good of the greatest number. The way that familiar utilitarian criterion is usually translated is that the law should create a system of incentives that will induce potential authors to generate works from which we will all benefit, and then make the fruits of those efforts widely available. In other words, the law should combine in an optimal mixture, on the one hand, stimuli for creativity and on the other mechanisms for distributing creative works to consumers. Theories in the fourth cluster similarly look to the well-being of society at large, but define that well-being more capaciously. They contend that the law should be crafted so as to foster a just and attractive culture. In determining what a just and attractive culture would be, these theories do not limit themselves to aggregate consumer welfare, measured by what consumers themselves currently want, but instead seek to identify and cultivate conditions that will support widespread human flourishing. So those are the four approaches. The labels that we will use for the four clusters are fairness, personality, welfare, and culture. All four of these theories, as we will see, are branches or variants of broader theories dealing with intellectual property rights as a whole, which in turn are branches of even more general arguments dealing with property rights of all kinds, including property and land, commonly known as real property, and tangible personal property. The roots of these four arguments, as we will see, are old, extending back at least as far as the 17th century. But many of the applications of those theories to intellectual property, and specifically to copyright, are quite recent. I've been using the term cluster deliberately. It's a mistake, as I'll try to show you, to think of these theories as unitary and determinant. It's an understandable mistake because some of the theorists themselves claim to have identified the one true theory and to be capable of generating from their preferred approach unique correct answers to every specific issue that arises in the law. That's a very ambitious contention, and in my view, it doesn't hold up. But the element of openness or indeterminacy in each of these theories does not mean that they are pointless. Rather, each one offers a set of concerns or issues that merit attention and deepens our analysis of those concerns and issues. This power to set agendas and to guide and enrich analysis, I'll try to show, can be extremely helpful. So with those cautionary words in mind, let's wade into the first of the approaches.