Despite the “robust history” of treating copyright as property,1 “property talk” still makes some copyright skeptics nervous.

Most recently, calls for regressive copyright changes have tried to recast copyright protection as more like government regulation than property. In fact, in Copyright Unbalanced: From Incentive to Excess, released last November by the Mercatus Center, law professor Tom Bell appears to argue that this in and of itself is among the necessary changes to copyright law. One of his “Five Reforms for Copyright Law” is to “Reconceive ‘IP’ [‘Intellectual Property’] as ‘Intellectual Privilege‘.” Forget about substance, the problem with copyright is semantics.

But too often, arguments against copyright as property are pushed through on shaky grounds. Recently, legal scholar Adam Mossoff responded to one common claim — one that states that “’traditional property rights in land’ is based in inductive, ground-up ‘common law court decisions,’ but that IP rights are top-down, artificial statutory entitlements.” A complete myth, says Mossoff. Traditional property rights in land were frequently throughout history created and extended through statute rather than common law courts.

I’d like to look at another common claim.

It’s just different

In Copyright Unbalanced, editor Jerry Brito begins his chapter by saying copyright is “a very different kind of property” than “traditional property.” In support of this claim, Brito points to the respective durations of each. As Brito explains, the “copyright clause allows Congress to establish copyrights for ‘limited times’ only. This means that unlike traditional property, copyrights must cease to belong to their owners at a certain point.”2 Brito is not alone in this argument; copyright skeptics have long made this argument. Lawrence Lessig, for example, perhaps the godfather of copyright skepticism, says in his 2006 book Code that the difference between copyright and what he calls “ordinary property” is recognized in the Constitution’s “limited times” language:

[N]ote the special temporality of this right: “for limited Times.” The Constitution does not allow Congress to grant authors and inventors permanent exclusive rights to their writings and discoveries, only limited rights… It does not give Congress the power to give them a perpetual “property” in their writings and discoveries, only an exclusive right over them for a limited time.

The Constitution’s protection for intellectual property then is fundamentally different from its protection of ordinary property.

But is it correct that copyright is fundamentally unlike “traditional” or “ordinary” property (whatever that is) because it has a cut-off date? Setting aside for now the fact that the Copyright Clause in the U.S. Constitution only applies to the United States — while every other country with copyright laws does limit its duration, I’m not aware that this limited duration is a constitutional requirement outside the U.S. Under Brito’s logic, it would apparently be easier to argue that copyright is property in, say, South Korea.3

Or is it?

If we consider property as a relationship between person and thing, than it should be easy to see that all property rights are limited in time. Until scientists discover a cure for death, property is limited in time to the life of its owner. After you die, you don’t own anything anymore; that specific relationship between person and thing is terminated. Who owns your property after you die is settled by — and this is important — positive law.

Because, if we’re talking about common law or natural law, as those who often advance such arguments are especially fond of talking about, the transfer of ownership upon death is far different. Nowadays, in very general terms, when you die, your property is disposed in the following manner: first, according to your will; next, if you have no will, then to your heirs according to the relevant state law; finally, if you have no heirs, then your property escheats to the state.

This is how William Blackstone explained the law in his Commentaries on the Laws of England. Said Blackstone:

The most universal and effectual way, of abandoning property, is by the death of the occupant; when, both the actual possession and intention of keeping possession ceasing, the property, which is founded upon such possession and intention, ought also to cease of course. For, naturally speaking, the instant a man ceases to be, he ceases to have any dominion: else, if he had a right to dispose of his acquisitions one moment beyond his life, he would also have a right to direct their disposal for a million of ages after him; which would be highly absurd and inconvenient. All property must therefore cease upon death, considering men as absolute individuals, and unconnected with civil society: for then, by the principles before established, the next immediate occupant would acquire a right in all that the deceased possessed.4

The “permanence” of property developed later, through civil law; first, through the right of inheritance, and later through the right to dispose of property through testament. Blackstone is clear: heirs had no natural right to inherit their parents’ property, and property owners had no natural right to “direct the succession of his property after his own decease.” Under natural law, all property lasts for “limited times”, becoming common property (part of the public domain) upon the death of the possessor. It is only through “the positive law of society” that a stable system of inheritance is created.

Blackstone’s Commentaries were hugely influential when they were published, referred to heavily by the drafters of the U.S. Constitution. While the bulk of public mentions of copyright during that time referred to it as property or literary property, I’m not aware of any explicit discussion of the “limited times” language in the Constitution and how it relates to copyright as property from the drafters.

However, there are roughly contemporary accounts of copyright that do recognize that its “limited times” do not take it outside the scope of “property.” In 1831, Congressman Gulian Verplanck delivered an address on literary property following the passing of the Copyright Act of 1831 — the first major general revision to U.S. copyright law. Verplanck argued that copyright was equivalent to other forms of property, how the “right of property in the productions of intellectual labour was as much founded in natural justice as the right of property in the productions of corporeal labour.” Said Verplanck:

Such too was the doctrine of the framers of our own constitution, as I maintained was quite evident from the peculiarity of their language on this point. They had not used any word, which would imply that they thought “to give rights to authors and inventors” but had authorized congress “to promote the progress of science and the useful arts by securing to authors or inventors the exclusive rights to their writings or inventions.” They clearly did not think they were enabling congress to give these rights, but presuming them to exist, they provided for protecting them by a legal remedy. The limitation of the term of legal exclusive enjoyment and protection was indeed the effect of positive law. But this limitation was precisely of the same nature with the terms of prescription of property and limitation of actions in all legal systems, which may be longer or shorter according to views of public policy, the natural and moral rights of property remaining unchanged [Emphasis added].5

Far from representing a fundamental break from “normal” property, the U.S. Constitution’s “limited times” language for copyrights remains consonant with how property has been conceived over centuries.

Footnotes

  1. Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson79 Southern California Law Review 993, 1004 (2006). []
  2. Why Conservatives and Libertarians Should be Skeptical of Congress’s Copyright Regime, Copyright Unbalanced: From Incentive to Excess, ch. 1 (Mercatus Center 2012). []
  3. Or, more interestingly, if, but for 17 U.S.C. § 301, copyright would be considered property in a state but not the federal government. Prior to that section, which went into effect in 1978 and preempts any state laws that provide protections equivalent to those under the U.S. Copyright Act, a dual system of federal and state copyright existed. Goldstein v. California, 412 US 546, 560 (1973). []
  4. Book 2, Chapter 1. []
  5. Discourses and addresses on subjects of American history, arts, and literature, pg. 221 (1833). []

4 Comments

  1. It’s not like physical property because it irreversibly transfers to the public after some time, and most ordinary property does not. But copyright is property regardless of its duration.

    Thus it would still be property if we changed the duration of copyright to 1 nanosecond. So what does being called “property” buy copyright in a debate about limiting its scope and duration?

    • I think you mistake the parochial for the universal here. The only reason copyright “irreversibly transfers to the public after some time” is that the law says so. There is no fundamental reason why the law could not place similar restrictions on land ownership, for example. Indeed, it would seem a lot more sensible to limit land ownership in this manner, given that there is a definite limit on the amount of available land and that no man can really give good title to his ownership of a portion – other than right of conquest (that is: grabbing it before someone else did).

      Copyright is actually more susceptible to perpetual ownership (I mean here transferrance of ownership to other parties upon the author’s death) than any other property, for two reasons. The first is that copyrightable works can – in theory – outlast any form of tangible property, other than real esatate. The second is that a key element of copyright – or author’s right, in the broader, continental sense – that does not pass into the public domain: the issue of authorship itself. Shakespeare’s plays remian Shakespeare’s plays, regardless of their status in terms of copyright. Each man’s work is uniquely his own and will remain so for all time. Even if the author’s name is lost, no other man can rightly claim authorship of a work, since that is a question of fact: who actually did the work.

      I believe that much of the confusion results from the fact that a replication monopoly patent came prior to the recognition of an author’s right to his work and that subsequent legislation pertaining to authors’ rights was modeled on the monopoly patent, rather than starting from first principles. If you are granting a monopoly patent (such as enjoyed by the Stationers), then it makes sense to make it limited in duration, that it may be subsequently reviewed when renewal comes up. However, no law has ever been able to vest authorship in someone and authorship – as I’ve already pointed out – lasts for eternity. That we choose to limit the duration of enjoyment of the benefits accruing from the author’s labour is an artifice of the law, with no better justification than, for example, saying that a carpenter may only own a chair he’s made for a number of years and then must relinquish it to the public.

  2. I like Tom, even though he is absolutely sure beyond any reasonable doubt that copyright is a “privilege”, and not “property”, and anyone who may disagree is…well…simply wrong.

    I recently invited him to a wager concerning “property/privilege” in the context of patent law and 5th Amendment “takings”. He has not taken me up on my invitation, which is probably a good thing since the case we were discussing is one with which I have intimate familiarity, both inside and outside the courts.

  3. Copyright is actually more susceptible to perpetual ownership (I mean here transferrance of ownership to other parties upon the author’s death) than any other property, for two reasons. The first is that copyrightable works can – in theory – outlast any form of tangible property, other than real esatate. The second is that a key element of copyright – or author’s right, in the broader, continental sense – that does not pass into the public domain: the issue of authorship itself. The law says Life plus seventy yrs, and then theirs is the First Sale Doctrine to those works, which is also argumentative. Most importantly once some thing is protected and the Library of congress issues you a Certificate of Copyright, only then are you protected, according to the Court of law. Property is Property and I feel
    when First Amendement guys, understand the Difference familiarity inside and outside in accordance to the Law, things will improve a bit online from theives stealing your work.