Copyright is now embedded in our culture, shaping our economies and welfare. Our lives are infused with many copyright-protected icons and images. Harry Potter, the songs of Lady Gaga, Star Wars and the software programs of Microsoft are some examples of this cultural infiltration. However, the repercussions of copyright policies on culture and the economy often remain obscure. Rather, our focus is mostly directed to the fruits of commercial creativity and innovation. We have little concern for “what is being produced, by whom and for whose benefit.” Oftentimes, we ignore who authors culture in reality.
Most scholarship on copyright considers this area of law from the standpoint of law and economics. To date, even the most ardent critics of the excessive nature of intellectual property laws have taken the normative goal of copyright law for granted. The powerful “public domain” advocates, criticising the aggressive growth of the copyright laws in the late 1990’s, bemoaned the counterproductive effects of too much property on intellectual productivity.
In this study, however, the capability-oriented human rights assessment of copyright law is brought to challange this conventional wisdom. This inquiry begins with freeing culture through finding cultural rights and freedoms. The identification of rights and freedoms in this study is done theoretically by largely grounding on Martha Nussbaum’s central capabilities list and Amartya Sen’s writings on ‘essential capabilities’. The copyright cases of Solomon Linda, a South African composer, and Shepard Fairey, an American graphic designer and artist, are narrated to illustrate which ‘capabilities’ can be at stake in real life. This inquiry also includes the question of how to rationalise these capabilities within law. The capabilities that are infused in copyright almost all the time have cross-cutting connections with human rights. The question then turns to understanding of how these identified capabilities are or can be conceptualised within the sphere of copyright law from the angle of several human rights frameworks. This enables to set the normative basis for a fair culture.