The Harvard Law Review recently conducted a symposium on The New Private Law (an admittedly academic area that I haven’t yet delved into too deeply). I was attracted by contributions by Abraham Drassinower and Richard Epstein on copyright law. But what really caught my attention was law professor Henry E. Smith’s paper, Property As a Law of Things.
In it, Smith challenges the prevailing view of property as a “bundle of rights,” criticizing it as not offering a complete theory of property law. What I found interesting is how Smith at several times notes that much of property law is centered around the concept of “exclusion” — if something is considered yours, you can prevent others from using it.
Property has purposes and employs various means to serve them. The purposes of property relate to our interest in using things. Desirable features of a system of property — stability, promotion of investment, autonomy, efficiency, fairness — relate to the interest in use. There is no interest in exclusion per se. Instead, exclusion strategies, including the right to exclude, serve the interest in use; by enjoying the right to exclude through torts like trespass, an owner can pursue her interest in a wide range of uses that usually need not be legally specified.
The “right to say no” is central to property law, but it is not the goal of property law. This is, perhaps, an obvious point, but, as Smith explains, it causes much confusion when we think about the means and ends of property:
The architecture of property emerges from the process of solving the problem of how to serve use interests in a roughly cost-effective way. In modern societies, the solution usually involves first the application of a use-neutral exclusion strategy, and then refinement through contracts, regulations, common law doctrine, and norms. Exclusion is at the core of this architecture because it is a default, a convenient starting point. Exclusion is not the most important or “core” value because it is not a value at all. Thinking that exclusion is a value usually reflects the confusion of means and ends in property law: exclusion is a rough first cut — and only that — at serving the purposes of property. It is true that exclusion piggybacks on the everyday morality of “thou shalt not steal,” whereas governance reflects a more refined Golden-Rule, “do unto others” type of morality in more personal contexts. It may be the case that our morality itself is shaped to a certain extent by the ease with which it can be communicated and enforced in more impersonal settings. I leave that question for another day. But the point here is that the exclusion-governance architecture is compatible with a wide range of purposes for property.
The same is true for copyright law. At its heart, copyright law secures exclusive rights to creators of original expressive works: the right to copy and distribute, the right to publicly perform and display, and the right to make derivative works. Though some commentators grow squicky at the mention of “property talk” in copyright discussions, the exclusive right of an author to copy her work is functionally the same as the exclusive right of a landowner to occupy her land or the exclusive right of a property owner to possess whatever the thing may be.
The confusion Smith refers to, over exclusion as a value, is very much present in copyright discussions. Many suggest that “relying on copyright” is the same as “preserving outdated business models.” What use is copyright if, for example, creators can raise funds on Kickstarter, or release their work online freely and seek remuneration through ancillary avenues?
These are valid choices for any creator, but it is vital to remember that they remain just that: the creator’s choice. Those values Smith refers to — “stability, promotion of investment, autonomy, efficiency, fairness” — are served by this. The “right to say no” that copyright secures is merely shorthand for ensuring a meaningful “right to say yes” to uses that are valuable to both the creator and the general public. To say that new business models refute the need for copyright is to confuse exclusion as a framework for furthering copyright’s goals with exclusion as a value in and of itself.
That’s not to say “exclusion” is the be all and end all of any property system. As Smith explains:
The exclusion strategy implemented as a right to exclude is at the core of the mechanism property uses to serve owners’ and society’s real interests. The right to exclude does not require an owner, whether it be an individual, a group, or the state, to actually exclude others; the gatekeeper can decide to include. Nor does the fact that a right to exclude follows automatically from the organization of modular things through an exclusion strategy mean that the right to exclude is absolute.
This is a strategy that has served copyright’s purpose well, especially when new technologies become popular. In 1909, Congress recognized that songwriters have the exclusive right to make mechanical reproductions of their works onto phonorecords and other mechanical devices, and recorded music has since become an integral part of many of our lives. US courts began to recognize an exclusive right to perform songs via broadcast radio in the 1920s. Today, radio is a multibillion dollar industry that penetrates nearly every US household. Cable television providers were at first exempt from copyright law for retransmitting broadcast shows, but Congress changed that in 1976 — this industry too has grown in size and reach since then, and original cable programming has progressed from endearingly awkward cable access shows to programs like Breaking Bad, Louie, and Burn Notice.
Granted, in the case of mechanical reproductions and cable retransmission of broadcast programs, US law has created compulsory licenses that allow certain uses, coupled with compensation set by statute, without requiring permission from the copyright holder. The existence of such compulsory licenses doesn’t negate what I’m saying. As mentioned above, there is no value in exclusion itself, and the right doesn’t require actual exclusion; compulsory licenses demonstrate that there are times when there are certain values — e.g., lowered transaction costs, concerns about monopoly — that are better served through alternatives to exclusion.
Creators, technology companies, and the general public have all benefitted from this framework that starts with exclusivity. Continuing to secure copyright’s exclusive rights is important to further the goals of copyright. In the words of the US Copyright Clause’s author James Madison, “[t]he public good fully coincides … with the claims of individuals” — or, as Register of Copyrights Maria Pallante stated recently, copyright is “for the author first and the nation second.” To say otherwise is to confuse copyright’s exclusivity as an ends rather than a means, setting it up as a strawman to strike down in an underdeveloped view of the nature of copyright.