[T]here is an important theoretical debate among egalitarians about the question whether egalitarian principles of distributive justice are properly applied to anything other than the basic structure. Correspondingly, there is a question whether the solution to inequality should be targeted at particular contexts, copyright, contract, etc., or whether the solution is a fair distribution of wealth and income.
This debate is an important one…and I am perhaps being too quick to assume there is such a thing as an “egalitarian” approach. Certainly G.A. Cohen’s work served as a challenge to those Rawlsians who concentrate on the “basic structure,” and they are responding. I find myself on Cohen’s side of that debate (though I am aligned with Sen on the larger question of the “currency of egalitarian justice.” )
But I have to think that there is a common use of “egalitarian” that we can all understand–a sense of helping those at the bottom lead fuller lives, and reducing objectionable forms of power exercised by those “at the top” (such as undisclosed “queue-jumping” or purchase of political power). (Molly Shaffer van Houweling conveys the “levelling up” aspect of this idea in her insightful article, Distributive Values in Copyright.) Egalitarians who insist that this process only occur at the level of society’s basic structure are unrealistic, since that kind of political action has been out of favor in most industrialized democracies for years. Moreover, in the copyright context, we have no idea whether raising the income of those at the bottom would actually expand their access to works; prices may just rise accordingly (as this post, admittedly on the telecom sector, suggests).
I will admit that some of my proposals to bring egalitarian goals to copyright are subject to the same type of critiques Walzer weathered in the collection Pluralism, Justice, and Equality. Walzer argues that distribution of “goods” in particular spheres should, by and large, be governed by the logics of those spheres: medicine to those who need it most, honor to the most honorable, etc. I have used a similar logic to argue another aspect of egalitarian copyright: that individuals should not be denied test prep materials (via copyright lawsuits) because of their lack of ability to pay. I think admissions to college or graduate school should be based on merit, not differential ability to pay for test prep.
Such “micro management” of the copyright system can come under attack as trivial or inconsistent in light of all the other inequities persisting in our education system. However, one can easily flip that argument, and claim that other, unremedied aspects of unequal childhoods make this reform all the more pressing. Though it may seem inefficient to promote equality piecemeal, we have few other choices in an era of rising income and wealth gaps. Moreover, truth in testing legislation shows that some governments have been willing to upset the copyright apple cart here.