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Akshat Agrawal

Abstract

Copyright policy, designed to protect creators and disseminators from market imperatives, has ironically deepened their market dependency. This transformation stems from two critical theoretical errors: first, the “incentives”/“reward for labour” story that mistakes protection from market pressures for market encouragement; second, market fundamentalism that treats exclusionary rights as natural and as the source of “liberty”. These misconceptions, reinforced by fallacies about pre-social creativity and physicalism, have transformed copyright from an enabler in a market society into one that commodifies creative expression itself, intensifying rather than ameliorating the economic vulnerability of cultural producers.

This theoretical misunderstanding has produced three interlocking harmful effects that reveal copyright’s deviation from its foundational purpose. The “price-tag effect” excludes those unable to pay market prices from cultural access and downstream creation, casting them as undeserving. The “privilege expanding effect” structurally biases cultural production toward the preferences and purchasing power of wealthy consumers, creating homogeneous cultural bubbles. The “distortionary effect” systematically undervalues cultural expressions that resist commodification due to their social embeddedness, undermining diverse creative practices that cannot extract market surplus. This, apart from the constant expansion in the scope of these rights, is because of the ontological nature of market dependent property rights, which threaten creative consumption and downstream production beyond measure. This paper proposes an alternative “Human Enablement” theoretical framework that reconceptualizes copyright’s fundamental purpose as enabling human creative capacity through social provision rather than incentivizing production through market mechanisms. Grounded in Jean-Jacques Rousseau’s political philosophy and contemporary capabilities theory, this framework distinguishes between self- preservation, the limited provision of basic needs necessary for creative agency, and self-love- the theological source of exclusionary rights linked to unlimited accumulation driven by market insecurity. The theory unravels that the purpose of the law is not to encourage someone to be creative but to make sure they are not discouraged due to market forces. This protective function has been obscured by centuries of doctrinal evolution towards ever-expanding exclusionary rights. Liberty is freedom from the market (for access to basics).

The Human Enablement framework suggests moving beyond exclusionary property rights as copyright’s primary tool towards context-sensitive alternatives including direct support systems that provide basic economic security, public funding structures that reduce market dependency, cultural infrastructure that enables creative development, and common pools of creative resources that support new cultural production dehors exclusion. This reconceptualization becomes particularly urgent as artificial intelligence intensifies copyright’s core contradiction by threatening to enclose creative capacity itself, potentially reducing human creators’ ability to participate meaningfully in cultural production. Rather than strengthening exclusionary rights in response to AI challenges, the Human Enablement framework advocates for policies that enhance human creative capabilities through education, infrastructure support, and alternative compensation mechanisms. This approach echoes Rousseau’s emphasis on positive provision through social solidarity over negative rights protection that are market based, offering a pathway beyond both market fundamentalism and technological resistance towards copyright policies that genuinely support human creative flourishing while ensuring broad cultural access and participation.

Digital Object Identifier (DOI)

10.55496/WTRW7686

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