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Copyright Law

: Moral Panics and the Copyright Wars

More on the Why of Property

By William Patry, Esq

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Ben, I happily concede you are better at formulating straw men than I. You say that I "formulate attacks that allegedly 'beat[] in the heart of every copyright industry lawyer and executive,'" and then give a quote from my post that has nothing to with what I was talking with my "beating in the heart" statement. My "beating in the heart" statement had to do with viewing copyright as a natural right. In your last paragraph, you then go right ahead and argue for a natural rights view of copyright, proving my point.

The focus on my post was on the Why of Property: why do copyright owners insist on describing copyright as a property right, rather than say as a regulatory privilege or a tort? And here I am not talking about being able to convey rights, mortgage them, or pass them on in your to your heirs, all attributes one could describe as personal property, or as something else.I am talking about the very nature of copyright, and its scope. I think we agree on many of the issues related to copyright, regardless of what it is called, demonstrating to me at least how useful these exchanges are. For example, you say "When the dust settles from such debates, we might end up with a strong, broad property right, or a weak, narrow one -- but in either case, it's still a property right." If we also agree that all property is a set of social relationships, in which the issue is what best serves society's interests, without any one side starting out in a privileged position, we are even closer yet. There is, after all, no such thing as copyright rights privately created and privately enforced. Copyright is created by public officials in the government for public reasons and is enforced by public laws and by public judges. Copyright laws are created as an entire fabric consisting of certain entitlements given to copyright owners, and certain entitlements given to the public. There is no support for treating authors as more privileged or important than another other interest in the copyright debates.

You may agree with this (or not, and if you don't I question how you can say describing copyright as property doesn't prejudge the outcome), but I wonder how many copyright owners do. The use of the term property is, first of all, not meant to be prescriptive; that is, it is not an effort to simply describe what you own. It is rather, an effort to influence the debate about how far your property rights do go; this is what Augustine Birrell realized 111 years ago, and in this effort, the terms "trespasser" and thief," used then as now, are used precisely to prejudice the debate in favor of the property view of things, a view in which there better be a good reason to depart from the presumption of Blackstonian absolute dominion, even as we know there are limits on all property. The burden is on others to show why they should be allowed to use the copyright owners' works without permission. Here is what Professor Joseph Singer said about this in relation to all property:

[W]e imagine [limits] on [property] to be exceptions to the general rule that owners can do whatever they want with their property. The burden is always on others (meaning nonowners or the state) to explain why the owner?s rights should be limited, and in today?s political climate that burden is heavy.

If ownership means presumptive control by an owner, and if the existence of ownership rights is a good thing then limitations on the rights of the owner must be justified by sufficiently strong presumptions of legitimacy. (see pages 124-125 of the book).

Here is one example of how that plays out in copyright. Here is a quote from an eminent expert on the Berne Convention on the current debate over the three-step test and "limitations and exceptions." The expert, whom I am quite fond of, wrote that limitations and exceptions should be allowed if ?there is a public interest . . . that justifies overriding the private rights of authors in their works in . . . particular circumstances.? (page 126). Here's another one, from the U.S. Copyright Office, on how to interpret compulsory licenses:

The Copyright Office has long been a critic of compulsory licensing for broadcast retransmissions. A compulsory license is not only a derogation of a copyright owner?s exclusive rights, but it also prevents the marketplace from deciding the fair value of copyrighted works through government-set price controls. (Page 127).

Such a view (in this case of Section 111) regards unfettered rights as the natural state of affairs, and any exception, even those created by Congress, as hostile to the natural state of affairs. Congress however created both the right and the compulsory license in the same act, at the same time, within the same system, and for the same purpose, to encourage learning and the distribution of copyrighted works. Regarding compulsory licenses as exceptions from otherwise unfettered rights is to place those licenses and exceptions outside the very system that created them, and which they are designed to foster. It is to seriously tilt the debate one way. That's the purpose of the property metaphor.

Here is another uses of the metaphor. In 1982, in hearings before Congress on Betamax home taping by consumers of free-over-the-air broadcasts, Jack Valenti testified:

No matter the lengthy arguments made, no matter the charges and the counter-charges, no matter the tumult and the shouting, reasonable men and women will keep returning to the fundamental issue, the central theme which animates this entire debate: Creative property owners must be accorded the same rights and protection resident in all other property owners in the nation. That is the issue. That is the question. And that is the rostrum on which this entire hearing and the debates to follow must rest. Pages 109-110).

Mr. Valenti was referring to his desire to have an absolute right to stop home taping of free-over-the-air broadcasts, through the right to stop VCRs. To him, this type of absolute right was the right "all other property owners in the nation" had, and he wanted it too. Ted Turner once stated this more succinctly, when in responding to critics of his colorizing movies, he stated, "Last time I checked I owned them." The use of the property metaphor is a political use, and it is a use that is made because of the freighted associations that we have with the "every man's home is his castle" metaphor. The mistake that is made in not realizing it is a political tool is that we know even real property has, as you rightly noted, lots of limitations. Reality is not the point though for rhetorical devices. Even though Blackstone wrote in the late 1760s that ?[t]here is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe,? this definition never reflected then contemporary English or U.S. law, and was in fact metaphoric. Professor Robert Gordon, in a study of the actual state of property law in Blackstone?s time, wrote:

What strikes the backward-looking observer as curious is simply this: that in the midst of such a lush flowering of absolute dominion talk in theoretical and political discourse, English legal doctrines should contain so very few plausible instances of absolute individual rights. Moreover, it is curious that English and colonial social practices contained so many property relations that seem to traduce the ideal of absolute individual rights.

This was also true of copyright in Blackstone's time, but the metaphor lives on, not because it is descriptive, but because it is useful, and that is the why of why Jack Valenti used it in 1982 and why others continue to do so today.

Full post as published by Moral Panics and the Copyright Wars on August 20, 2009 (boomark / email).