Copyright and the Why of Property Talk

A few comments on my first two posts referred to the characterization of copyright as “intellectual property” or a “property.” While there have been a number of efforts to track down the fairly recent usage “intellectual property,” efforts to describe copyright rights as property are of an older vintage in both the United States and Britain. What interests me is not tracking down the first time the term “property” was used in conjunction with copyright, but why the association is sought to be made, both in the past and quite a bit recently.

To me, the debates about copyright as property are always political, not historical; they are always efforts to influence the present and the future, an effort to get the legislature or the courts to reset the boundaries. The use of the term property is not meant to simply describe what you own; after all if we took the current copyright act and added alternatively at the beginning “copyright is a privilege and not a property right,” or “copyright is a property right, not a privilege,” but changed nothing else, why would this matter?

Rather, use of term property is an effort to influence the debate about how far your property rights should go; this is what that great Victorian man of letters Augustine Birrell realized 111 years ago in a series of lectures on copyright he gave at the University College, London, later published as “Seven Lectures on the Law and History of Copyright in Books.” Mr. Birrell was ruminating, as we still do today, on the various origin stories for copyright. On the question of why copyright owners insist on describing their government created and granted right as a property right, Mr. Birrell wrote:

“The reason[] th[is] question[] was asked . . . was this—Certain rights over things amounting in the aggregate to a more or less complete exclusion of others than the owner from participating, save by consent, in their enjoyment had in the Western World become recognised as property. . . . 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 that the pedigree was invented to account for the fact of possession than in attributing the fact of possession to the virtues of the pedigree.”

“But whatever its origin, the Western World has throughout its long history shown an ever increasing disposition to recognise the right of individuals to the exclusive possession of certain things, and these rights it has clustered together, recognised, 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.”

“Neither were these romantic conceptions mere 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 a trespasser.”

Birrell nicely points out the fallacy of the “virtue of the pedigree,” in which we are to assume that copyright owners have the rights they have due to being, simply, copyright owners. One need not inquire further: to be a copyright owner is to have been vested with an ancient pedigree; one is a property owner and by itself that is all the justification that is needed. The alleged classification of copyright as a property right is made to take copyright protection outside of the need for any empirical, social justification. As a property right we do not ask about incentives, and we do not ask whether the property interest benefits the public. Property simply is and need not be justified (that’s the theory, at least, propounded by its advocates). Those who own property rights are entitled to hunt down unauthorized users as free-riders, as criminals, as a threat to polite society just as surely as those who break into our homes or steal our cars, a trope that some copyright owners have used, more than once.

What are the real world consequences of this? Are there any, or is this just a semantic waste of time? The principal use of property-talk in copyright is to frame debates over the scope of copyright in a way in which we start from a default of absolute rights, even though, as with all property, we concede there are “always” exceptions. (The copyright act has a bunch of them in 17 USC 107-122). The exceptions are, though, precisely that, exceptions and those who seek (either through legislation or court decisions) to use copyrighted works without permission are stated to need a good reason to depart from the presumption of Blackstonian absolute dominion. The burden is on others to show why they should be allowed to use copyright owners’ works without permission.

Fair use, for example, is said by some to be an exception; it is, after all an affirmative defense. Judge Pierre Leval has, however, taken a different approach, writing: “Fair use should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright monopoly. To the contrary, it is a necessary
part of the overall design.” Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1110 (1990). Consistent with Judge Leval’s overall design approach to copyright, I argue in the book that copyright is a set of social relations, created for a specific social purpose: the promotion of the progress of science. The advantage in regarding copyright as a system of social relationships is that it focuses attention where it belongs: in mediating conflicts within that system, and not, as the property as ownership model does, by positing ownership as the natural state of affairs, and by regarding every effort to regulate for the public interest to be a hostile act that must be ferociously fought against as if it is an existential threat, or conversely, that copyright rights are inherently against the public interest, which I reject as well.

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