By , October 13, 2010.

Many critics of current copyright doctrine believe its problems stem largely from an infusion of “property talk” into policy discussions. William Patry writes in Moral Panics and the Copyright Wars, “By describing copyright as a private property right, proponents of the description hope to get policy makers and courts to believe that only private, and not public rights are implicated.” 1Moral Panics, pg. 107 (Oxford University Press, 2009). Later, he adds, “The effort to describe copyright as property is intended to invoke ancient entitlement to powerful rights of exclusion, rights granted automatically as a member of the oldest families.” 2Moral Panics, pg. 113 (Oxford University Press, 2009).

A similar argument is made by Steve Collins in “‘Property Talk’ and the Revival of Blackstonian Copyright“:

The possessiveness and exclusion that accompany “property talk” are difficult to reconcile with the utilitarian foundations of copyright. Transformative uses of copyrighted materials such as mashing, sampling and appropriative art are incompatible with a propertarian approach, subjecting freedom of creativity to arbitary licensing fees that often extend beyond the budget of creators (Collins). “Property talk” risks making transformative works an elitist form of creativity, available only to those with the financial resources necessary to meet the demands for licences.

This view is shared by many copyright critics online. Mike Masnick, at TechDirt, consistently argues that copyright is not property, and can in fact be viewed as “anti-property.” Boingboing blogger Cory Doctorow says,

Trying to shoehorn knowledge into the ‘property’ metaphor leaves us without the flexibility and nuance that a true knowledge rights regime would have.

Copyright – with all its quirks, exceptions and carve outs – was, for centuries, a legal regime that attempted to address the unique characteristics of knowledge, rather than pretending to be just another set of rules for the governance of property. The legacy of 40 years of “property talk” is an endless war between intractable positions of ownership, theft and fair dealing.

But is this necessarily true?

Transformation in Property and Copyright

Legal Theory Blog points to a new paper by Christopher M. Newman that argues many of the problems in current copyright doctrine – specifically relating to how it treats creative uses rather than consumptive uses of existing works – may be better addressed by treating copyright more like property rather than less.

Transformation in Property and Copyright is available at SSRN, and I second Legal Theory Blog’s recommendation. The abstract reads:

Copyright requires us to distinguish between two different ways of transforming a “work of authorship”: “derivative works” and “transformative fair uses.” The absence of a clear line results in a tendency to assign all value arising proximately from a work to copyright owners. Many people blame this expansionist tendency on a “propertarian” understanding of copyright, and argue that the solution is to abandon any notion of copyright as property. I agree that current copyright doctrine often gives excessively broad scope to the exclusive rights of copyright owners, but argue that this may be a result of copyright not being “propertarian” enough. Property is an attempt to coordinate resource use through a system of in rem rights whose content can be understood by third parties without reference to the subjective use preferences of others. Traditional property law dealing with the transformation of mundane objects uses objective, socially intelligible tests of identity to determine when an owner’s rights in a thing have been extinguished, thus preventing owners from asserting subjective use preferences as a means of extracting value from transformed objects created by others.

Far from implying “absolutist” authorial rights, an in rem approach to copyright requires that we place clear boundaries around the identity of the “work of authorship.” This means moving away from the notion that disembodied fragments of “protected expression” can be owned separately from the “work of authorship” of which they are a part. I show how this might be done, proposing to define a “work of authorship” in terms of a coherent expressive experience designed by an author. Putative “copies” that are not tailored to facilitate beneficial use of the work as conceived by the author, but rather to communicate second-order information, or to give rise to expressive experiences radically discontinuous from the ones the author designed, therefore fall outside the author’s right to exclude altogether. Such a “propertarian” approach could be both clearer and more protective of free speech than current doctrine, because limits on the scope of the author’s rights would be defined intrinsically, obviating the need to resort to fair use doctrine with its value-laden weighing of social worth.

Essentially, Newman argues that copyright doctrine needs a better theory to sort out the age-old question of “which ‘further purposes’ authors should control, and which they shouldn’t.” Along the way, he touches on a number of situations in which current copyright doctrine finds infringing use where many would argue noninfringing use: unauthorized sequels (like The Wind Done Gone), “fictional facts” (at issue in the lawsuit against the Seinfeld Aptitude Test), and uses of a work to convey second order information (for example, incidental captures of copyrighted works in film scenes). Newman convincingly argues that his “propertarian” approach would sort out infringing and noninfringing uses that are better aligned to the underlying goals of copyright law.

It’s definitely worth a read. Those outside the legal and academic fields may find it long (it’s just under 80 pages) and technical at times, but there’s plenty of good stuff inside.

Newman’s article builds upon a number of previous works, but I wanted to specifically point out two that are worth reading if you’re interested in this area of the copyright debates. The first is Adam Mossoff’s Is Copyright Property? and the second is Richard Epstein’s Liberty versus Property? Cracks in the Foundations of Copyright Law, both available at SSRN.

Upon reading Newman’s article, I was reminded of an earlier article by David Fagundes, Crystals in the Public Domain. Newman argues along much the same lines as Fagundes, as you can see in the abstract:

The law increasingly treats copyright as if it were any other form of property, and numerous writers decry this trend. In particular, scholars who express solicitude for the public domain fear that the propertization of copyright means an inevitable accretion of private rights in information at the expense of the public domain. This Article critiques this conventional view, arguing that the propertization of copyright has unappreciated advantages for users of public information goods. The conventional view relies on an overly narrow view of what propertization means. The treatment of copyright as a form of property generally entails not only reduction of entitlements to private ownership, but also the bounding of those entitlements with clearly demarcated, or crystalline, borders. Although many writers prefer muddy entitlements that create fluidity regarding the extent of the public domain, this Article argues instead that it is this very fluidity that is at fault for excessive accretion of private rights in information. Uncertainty about the extent of public entitlements in information allows well-capitalized private actors lay claim to resources whose public/private status is at all ambiguous, and then deter the public’s claims through threats of litigation. By contrast, a public domain characterized by crystalline rule structures would benefit users, not only owners, by allowing them to better comprehend the extent of their entitlements and thus exploit common resources without fear of suit. By way of illustration, this Article provides three examples of how copyright law could be reformed to create user-friendly crystalline entitlement structures. It then concludes by situating the propertization of copyright law, and this critique of the dominant narrative about that trend, in the context of current debates in property law more generally.

Fagundes’s article includes several specific proposals to copyright law as a way of incorporating his arguments.

The cries that “copyright is not property!” embrace not only a simplistic idea of “property” but also ignore the benefits that taking a more “propertarian” approach to copyright doctrine may provide. The idea that “property talk” is a pretext for exerting “sole and despotic dominion” over all uses of a copyright does not hold weight upon closer examination. Newman’s article provides one such examination, and I highly recommend giving it a read.


1 Moral Panics, pg. 107 (Oxford University Press, 2009).
2 Moral Panics, pg. 113 (Oxford University Press, 2009).