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.
spudbeach says:
Well said. The imagery of “property” leads nicely to the use of “piracy” to refer to unauthorized / illegal use. If not for the emotional pull, why would anyone equate copying a CD with forcible theft, rapine and pillage on the high seas?
October 6, 2009, 7:52 pmeddardStark says:
Not really germane to the discussion, but of interest to the wider copyright debate:
http://www.huffingtonpost.com/2009/10/06/emboing-boingem-and-ralph_n_311593.html
http://www.boingboing.net/2009/10/06/the-criticism-that-r.html
And of course the appeal to emotion inherent in the “property” label is what helps them try and get away with this sort of thing.
October 6, 2009, 8:41 pmMIke says:
I would like to know what those who are fervently against government regulation think about the role of “intellectual property” in the economy.
To me, patent and copyright laws are a form of government regulation: they involve a govt bureaucracy telling market actors what they can and can’t do. Yet it seems such laws are popular among proponents of free markets. I don’t argue against this popularity — these laws increase incentive to invest in research and innovation and thus in my opinion improve the long-term “output” of market competition.
But to me, this highlights a subtle aspect of the “market,” which is that the basic rules that provide incentives among its actors are to some degree arbitrary — in the sense that they handed down from the past, in part the result of trial and error — and thus we shouldn’t automatically rule out making adjustments to these rules, to try to improve upon the existing set of incentives, if we want to change the “output” of the market to better serve some social good (like new technology in the case of patent law, or new art in the case of copyright).
Now, this thinking certainly distinguishes between regulation in the form of simple rules like forbidding or taxing forms of pollution or creating consumer rights vis-a-vis health insurance, and regulation in the form of “hands on” govt agencies involved in the day-to-day activity of market actors. But, at least from my side of the aisle, I don’t see this distinction among those on the right. I see people largely arguing “freer markets are better” without an explanation of what it really means for a market to be “free.”
I think in the long run this does a disservice. A majority of people might recognize there’s a problem that needs a govt solution, but if those who believe in the power of market dynamics do not propose solutions based on changing market incentives, then those who believe in the power of govt technocrats will win the day with perhaps less efficient solutions. I suspect this is what is happening at present with respect to how we approach renewable energy and financial regulation.
October 6, 2009, 9:14 pmOrin Kerr says:
“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.”
Bill, I am struck by your use of the word “always” here. Always is a strong word: It’s not sometimes, or often, or usually, or almost always, but, well, always in every single case. So for the claim to be correct, it has to be the case that every person who has ever been in a debate about copyright as property has this agenda in mind. I wonder, could that possibly be correct?
October 6, 2009, 9:25 pmOrin Kerr says:
Mike, isn’t property a form of government regulation, too? The government announces to market actors that it has picked one person or group that is allowed to control something, and that it will enforce efforts by that one person or group to exercise exclusive control against all other market actors.
October 6, 2009, 9:28 pmChris Newman says:
Perhaps the problem isn’t so much with putting copyright in the category of “property,” but with assuming that this means infringement is necessarily in the category of “theft” or “trespass.” The one doesn’t follow from the other. Since infringement is a non-possessory interference with someone else’s IP, it should better be analogized to a non-possessory interference with tangible property, i.e., nuisance. To decide that something is an actionable nuisance, we have to decide not only that it interferes with the owner’s “use and enjoyment” of his property, but also that the magnitude of this harm outweighs any social value created by the invasive activity. In other words, it’s an inquiry that takes into account “fair use” in determining whether a property owner’s rights have actually been violated. Just as fair use in copyright is really not supposed to be a way of excusing otherwise infringing activity, but a way of determining that there is fact no cognizable infringement.
I agree with Bill that property-based rhetoric in service of copyright interests has often been too strident and absolute. I don’t think the right way to correct this, though, is to deny that copyright really is “property.” Rather, the right approach is to explain the justifications for and properly limited scope of property rights of all types.
October 6, 2009, 9:32 pmD.R.M. says:
Shorter Birrell: Natural rights don’t exist; all is the domain of positive law.
And certainly, once one rejects the existence of natural rights, one doesn’t have to think at all about whether copyright is an aspect of one. But then, one doesn’t have to think about whether opponents of copyright have a natural right to not be tortured to death for televised entertainment, either.
October 6, 2009, 10:40 pmMIke says:
@Orin Kerr:
Yes it seems to me this is so. This is why I don’t see taxation as an infringement on personal liberty. Ultimately, the govt defines what is private property and what is not, and taxation can be seen as the assertion by the state that a certain fraction of income isn’t really private property.
My point in bringing this up isn’t to justify socialism. I just think, when you argue against progressive taxes or against certain regulations, you should do so based on what are the specific expectations, and not based on what seem to be to be vacuous notions like “freer markets are more efficient” and “taxes infringe personal liberty.”
[Of course economists prove market efficiency; but I presume they do so in idealized models that do not address what precisely is and is not personal property, and other details of how the market is structured. Indeed I understand an important assumption is lack of externalities, which is something that at least some regulation attempts to enforce.]
October 6, 2009, 10:46 pmMax Hailperin says:
I was struck less by the word “always” than by the word “not,” as though the political and historical are mutually exclusive. Is there no room for politically-influenced or even politcially-inspired works of history? L. Ray Patterson’s political views about the present and future may have influenced his Copyright in Historical Perspective, but I would be loath to say he was straying from the disciplinary methods of history in digging out centuries old primary sources, considering them in their broader context, and pointing to strands of influence in areas both of continuity and innovation.
I would contend that politically-influenced history is distinct from politically-influenced sloganeering or telling of just-so stories. In this regard, Birrell’s comparison with real and personal property may be misleading. For those forms of property, the origins are lost in the mists of time, so all we have are just-so stories rather than history. Whereas copyright, at least Anglo-American copyright in published works, is a comparatively recent innovation, accessible to the tools of history.
October 7, 2009, 9:23 amGabriel McCall says:
Not all proponents. There’s a sizable community in the libertarian/Austrian crowd who see IP law as both immoral and inutile: see for example here.
It’s certainly true that such incentive is the intent and supposed justification for these laws, but there’s substantial disagreement over whether that is the actual effect. There’s convincing research showing that the net effect of IP law on innovation is negative in both the short and long term.
October 7, 2009, 10:09 amChrisTS says:
Orin: Bill, I am struck by your use of the word “always” here.
So am I. I used the phrase ‘intellectual property’ in the other thread because that is the phrase I know. I’m not quite sure what to call my written work* if I cannot refer to it as my intellectual property.
* Other than calling it my written work.
October 7, 2009, 10:23 amMax Hailperin says:
Another venerable metaphor is offspring (progeny, children).
October 7, 2009, 12:42 pmMax Hailperin says:
Another venerable metaphor is offspring (progeny, children).
October 7, 2009, 12:43 pmFub says:
I don’t think the “copyright industry” coined and propagated the “piracy” metaphor entirely on its own, simply as a ploy for public sympathy. The “Air Pirates” litigation nearly 40 years ago, long before invention of the CD, demonstrates that the metaphor was already abroad.
October 7, 2009, 12:55 pmGabriel McCall says:
The Air Pirates cases were about a set of comics in which Mickey Mouse was fighting against cartoon brigands in airplanes. The piracy in question was literal, not metaphoric.
October 7, 2009, 1:04 pmohwilleke says:
The gravamen of the wrong in meritorious, economically positive IP cases is unjust enrichment. Unjust enrichment creates the right intuition about remedies that are proportionate to the wrong, and discourage an intuition to resort to overkill remedies like large civil fines, injunctions ordering that infringers cease using profitable IP in favor of “patent trolls” and the like who aren’t using it, and criminal law in an area where the boundaries are often vague.
An unjust enrichment metaphor also promotes more constructive thinking about hard cases like cases where many different inventors and authors contribute to a single end product. Unjust enrichment favors thinking about a total pot of gain from the combined product which are parceled among everyone who has contributed. A property rights model favors a model that rewards holdouts who have slept on their rights while seeing if the end result pans out, avoiding the risks that other participants took.
Similarly, an unjust enrichment metaphor promotes a more rational consideration of whether it makes economic sense for the law to encourage going after marginal cases and dovetails nicely with a fair use analysis, while a property rights analysis has a hard time drawing a principled distinction between unimportant cases and important ones or for understanding why fair use should exist.
October 7, 2009, 1:52 pmChris Newman says:
I don’t know how much it matters, but the notion that the practice of referring to patents and copyrights as “property”, and infringement as “piracy,” are the result of some recent propaganda effort is simply false. For a scholarly demonstration of this point, see here.
And if you read the English court opinions from the Battle of the Booksellers (on the question of whether there existed common law copyright preceding the Statute of Anne), you’ll see that plenty of common law judges (including Lord Mansfield) believed authors’ claims to be grounded on the same moral premises as other types of property. In fact, Oren Bracha makes an interesting argument that the unitary conceptual category of “property”–as opposed to just a laundry list of various ownership interests in land, chattels, and offices–was actually first constructed in this context. If he’s right, it means that far from “property” being a mantle that copyright attempted to cloak itself in 300 years later, “property” was a label that was specifically tailored to explain why copyright deserved protection.
October 7, 2009, 2:00 pmChris Newman says:
Sorry, messed up that second link. The Bracha material is here.
October 7, 2009, 2:06 pmJWB says:
I agree with the general notion that the rhetoric of “property” has been used in a way that has led to unhelpful changes in the law, but I would be curious as to why similar rhetoric has not (if it has not) led to similar unhelpful results in the patent area. Most noticeably, there has been no ever-increasing expansion of the term of protection on the patent side as compared to copyright. I can think of various practical/political reasons for the difference, but attributing it all to that would suggest that these rhetorical/conceptual things don’t really matter. (I actually think that a fair tradeoff for the ever-longer copyright term might be a narrower scope of what is actionable infringement and thus a more robust notion of fair use, but you have to get pretty far past the “this is property; property is good” outlook to look at it in those terms.)
October 7, 2009, 3:24 pmsk says:
You remain stuck in hermaneutic analysis, and are unable to make an ethical or moral argument for your view. I can’t tell if you are neglecting to make that moral argument because its too long and is contained in the book, or if you really don’t know the difference.
Sk
October 7, 2009, 3:45 pmMichael F. Martin says:
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.
I’m all for a systems theory of IP. In fact, I had an article advocating such a view published recently. My only caveat would be that the transactions costs that have traditionally been cited as the economic rationale for fair use (for example) should not be understood narrowly. In the New Institutional Economics literature, Williamson and others have demonstrated how these costs can be categorized into uncertainty, frequency, and specificity — categories that embrace the dynamics of the social network in which our IP is embedded.
October 7, 2009, 4:07 pmModa says:
Yes… that would follow from a rejection of natural rights. And if that were all that prevented opponents of copyright from being tortured to death, we might be worried.
October 7, 2009, 11:35 pmChrisTS says:
Yeah. I always find that a bit over the top: my book is ‘my baby.’
October 8, 2009, 1:50 pm