Protecting property rights in creative works represents a classic institutional approach to the specific economic problems of nonrivalness and non-excludability of information. By providing the copyright owner with an enforceable right against non-paying members of society, copyright laws encourage the production and dissemination of literary and artistic works to society for educational purposes. Implicit in the grant of property rights is the assumption that commercial incentives foster creative activity and productivity. In recent years, literary and artistic works have increasingly become the subject matter of exclusive property rights and control, particularly as emerging technologies provide users of creative works with greater access to informational goods. Despite the development of technologies that enable broad access, the result of expanding property rights in literary and artistic works has been higher access costs, which severely restrict society's ability to access and use the information. This Article examines society's claim to a right of access to information in order to further the constitutional goal of promoting progress, and proposes that the question of access to information is one of sustainable resource use that should not evoke the exclusionary rights of a strict property rule. Copyright laws protect economic privileges in information and govern society's use of informational resources; however, they do not provide copyright owners with a general right to exclude socially beneficial uses of informational works. These laws are specifically tailored to increase social welfare, and must be distinguished from a property right to exclude others from use of a thing. Exclusionary property rights in creative works arise, if at all, to protect an author's creative integrity, validate the importance of authentic authorship, and provide personal and moral incentives for authors to produce creative works of social value. Property rights and economic privileges, this Article proposes, encourage the production of informational goods and are necessary to ensure the advancement of science and the useful arts in accordance with the constitutional goals of the copyright system.
42 Loy. U. Chi. L. J. 89 (2010).