Home -> Law Blog Directory -> Copyright Law Blogs -> Moral Panics and the Copyright Wars

Copyright Law

: Moral Panics and the Copyright Wars

Property and Property Rights

By William Patry, Esq

In prior posts, I have spoken too loosely about property rights, when in some instances I was really talking about property. I want to correct this semantic sloppiness and distinguish between the two different concepts as I see them. Professor Steven Munzer has distinguished the two as follows:

"The idea of property rights is narrower than that of property. Property rights involve only advantageous incidents. Property involves disadvantageous incidents as well. Meant here is advantage or disadvantage to the right-holder or owner. Although property obviously involves disadvantages to persons other than the right-holder, it is important to see that there can be disadvantages to the right-holder as well. Suppose that someone owns a single-family home in a suburban area. Then she has a duty not to use it in ways prohibited by the law of nuisance or by zoning regulations.
. . . .
For [property] owners, property imposes burdens as well as confers benefits. Burdens such as liability to taxation and responsibility for management and proper use."
Stephen Munzer A Theory of Property 24, 97 (Cambridge University Press 1990).

My point is that copyright owners too often speak of their property rights, and not more broadly about property, with both the advantages and disadvantages. Sure, some copyright owners will acknowledge, as Ben has, that like all property, copyright owners? rights are not absolute, and I certainly am aware that Ben has a very real commitment to fair use, for example. Other copyright owners too have taken stands for fair use, at least when they are sued.

The Constitution is quite clear that Congress can only grant copyright to promote the progress of science, and thus this ?burden? exists from the inception of the rights, and follows those rights for the duration of the copyright. To me, the advantages conferred by copyright are no higher (or lower) in the hierarchy than the ?disadvantages,? what are typically misdescribed as ?limitations and exceptions.? I say misdescribed because the term infers that the natural state of affairs is property with only advantages; disadvantages are to be few in number, and carefully circumscribed. Judge Pierre Leval rejected this view as applied to fair use in his path-breaking article. ?Toward a Fair Use Standard,? ?103 Harv. L. Rev. 1105, 1110 (1990): ?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.? (See further discussion page 151 of the book, which also gives a similar quotation from the Canadian Supreme Court).

That?s the nub of it for me too: there is an overall design, a set of social goals to be furthered. They are furthered both by advantages to copyright owners and disadvantages to them. Both are part of the same whole. The ?why? of the property talk in the Copyright Wars is an effort to deny the whole in favor of only the advantages, if only as a burden shifting-device, but more often as an asserted first principle. I reject the asserted principle, but that doesn?t mean I reject the whole, and that ?s why it is accurate for me to describe myself as a centrist.

Full post as published by Moral Panics and the Copyright Wars on September 07, 2009 (boomark / email).