Tuesday, June 20, 2006

Does It Matter if Copyright is Property?

Recent years have seen an explosion of academic interest in questions of property. Law professors plumb ancient, Elizabethan (if I have to read any more about John Locke and copyright I will puke) and modern sources in an effort to develop a unique (read publishable in a top ten law review) theory of the subject. These are big articles. See e.g., "A Theory of Property," 90 Cornell L. Rev. 531 (2005)(74 pages); "What is Property? Putting the Pieces Back Together," 45 Ariz. L. Rev. 371 (2003)(66 pages). Intellectual property is not immune from such efforts, see the 125 page "Cabining Intellectual Property Through a Property Paradigm," 54 Duke L.J. 1 (2004). Academically oriented judges have gotten in on the debate too, see Frank Easterbrook, "Intellectual Property is Still Property," 13 Harv. J. L. Pub. Pol'y 108 (1990). Cf. Stephen Carter, "Does it Matter Whether Intellectual Property is Property?," 68 Chi.-Kent L. Rev. 715 (1993). Even those who oppose the dramatic expansion in rights since 1998 have tended to talk the IP property-talk, albeit through an appeal to a different result based on democratic ideals.

The debate about the provenance of copyright as property is not new, nor has the semantic sleight-of-hand the effort attempts gone unnoticed. At the end of the 19th century, Augustine Birrell wrote:

"The origin of property, of exclusive ownership, is one of the subjects about which our predecessors in title loved to discourse at large after a fashion more ingenious than historical. ... Occupancy and Labour are the mythical parents of Property, but we shall be less wrong in assuming the pedigree was invented to account for the fact of possession than in attributing the fact of possession to the virtues of the pedigree.”
Augustine Birrell, "Seven Lectures on the Law and History of Copyright 11 (1899).

What those who seek to have copyright classified as property is clear enough though: Blackstonian sole dominion, justified by the very classification of property. Again Birrell (id. at 103-14):

"[T]he Western World has throughout its long history shown an ever increasing disposition to recognize the right of individuals to the exclusive possession of certain things, and these rights it has clustered together, recognized, venerated, worshipped, under the word property.

To be allowed to enter this sacrosanct circle is a great thing none but the oldest families need apply … Once inside this circle your rights were supposed in some romantic way to be outside the chill region of positive law – they were based upon natural rights, existing previously to the social contract, and without which Society was deemed impossible.

Nor were these romantic conceptions more jeux d’esprit. Consequences flowed from them. If your right to turn your neighbor off your premises to keep your things to yourself – was property, and therefore ex hypothesi founded on natural justice, he who sought to interfere with your complete dominion was a thief or trespasser, but if your rights were based upon some special concession made to you upon your own merits, you find yourself dubbed a monopolist … Monopoly is always an odious word. Property is still sacred one."

But what if copyright is just a tort, as indeed courts refer to it as. Might that not lead to consideration of things in a different light, one that involves more of the balancing of interests one typically sees, say in, negligence actions, a Coase Theorem of copyright? There is an article about this too, Robert Merges, "Of Property Rules, Coase, and Intellectual Property," 94 Colum. L. Rev. 2655 (1994), but academia aside, in the real world, one wonders whether the recent willingness of courts to decline issuing injunctions signals a shift toward a less property-oriented view.


Zvi Rosen said...

I'd also comment that the Ingersoll Copyright Bill of 1844 (28 HR 9 section 15 - available on the LOC's Century of Lawmaking site) contained a provision to explicitly make copyright property.

William Patry said...

Here is a link to the bill: http://memory.loc.gov/cgi-bin/ampage?collId=llhb&fileName=028/llhb028.db&recNum=37

To print it out it is best to go to the higher definition option and each page of the 7 page bill has to be printed out separately.

The bill begins with amendments to dramatic works and musical compositions, but then in referring to things like sculpture the bills grants "the sole right and property of very new and original sculpture ...."

zvi rosen said...

Here is the actual page for section 15 of the bill...the bill is 14 pages, and the amendments are 7 more. I did a history of the bill just recently...it's somewhat interesting.

William Patry said...

Now I figured it out. My 7 pages are amendments to the 14 pages bill you link too. I don;t understand why Ingersoll would on the same day over amendments and a bill, but if you would like to do a guest blog ont eh bill, that would be great, you can email me at Williampatry@yahoo.com

Section 15 which you referred and linked to, concerns treating copyright as personal property for succession and intestacy purposes.

Bruce said...

If copyright is just a tort, how come you can transfer it before there's been any infringement? Can you transfer future claims of negligence?

William Patry said...


You can assign at least some other types of causes of action, although not copyright infringement. I don't know about negligence. I was suggesting though that since copyright infringement is regarded as a tort, that in thinking about infringement we think about it as the tort it is and not as infringement of property with all the baggage that goes with that characterization, like you're a trespasser, you stole my property, etc.

Anonymous said...

The assignability point is compelling. Trespass to land, trespass to goods - they are all claims in tort. Fishing rights, shooting rights, easements, even the right to appoint a clergyman to a Church of England benefice (an advowson) - these are all property and you cannot strike a match on any of them.

Timothy Phillips said...

When we say that the copyright (not the copyrighted work) is personal property for some purposes, isn't this merely a way of saying that, in the absence of explicit statute law, cases will be resolved by analogy to the law of personal property ? Would we get a better outcome in hard cases if we drew our default principles from some other area of law, or would we merely be exchanging one set of conundra for another ?

Many careless writers, of course, make the mistake of writing as though that the copyrighted work itself, not the copyright, is personal property. If treating copyrights as some other form of legal privilege than property would prevent people from falling into this mistake, that might itself be a worthwhile benefit.

Adam Smith (Lectures on Jurisprudence) thought that a copyright was an "exclusive privilege", like a right of first refusal, or the exclusive right of a hunter hot on the trail to the hare, unless he gave over the chase before taking her. So there is precedent for thinking of the copyright as something other than personal property.

John Noble said...

I think the significance of copyright as a property interest arises from the question of whether it is a property interest in a natural law sense that is recognized and enforced by statute, or one that is created and defined by statute, going back to the Statute of Anne.
The former conception -- copyright as a property interest recognized by the Act -- calls for a broad construction of the scope of protection given to property identified by a deed that is narrowly construed. The latter conception -- copyright as a property interest created by statute -- requires a narrow construction of the Act, as though it were a deed describing the property.

William Patry said...

Copyright is certainly "property" in the sense of being descendible. It is also clear it is not a natural right, but a statutory right. It is also true that even though a statutory right, it is protected under Fifth Amendment, although this caused nice questions before one could sue the USG for infringement. The view I expressed in the blog is, I think, which may be similar to Timothy's, is that in discussing infringement, and infringement only, describing copyright as property is a rhetorical device used to get to particular results, results that I think can in particular cases be too unbalanced. In order to have the necessary flexibility to promote the progress of science, I was proposing use of different analogies.

Anonymous said...

I imagine the implication of right of first publication as a dimension interest grows from the inquiry of whether it is an attribute interest in an instinctive law sense that is discerned and imposed by statute.
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