Document Type

Article

Publication Date

Fall 10-2014

Publication Title

Buffalo Intellectual Property Law Journal

Volume

10

First Page

34

Last Page

69

Keywords

copyright, property, copyright theory, property theory

Abstract

The primary goal of this article is to look at the property attributes of copyright to inform a more nuanced understanding of the nature of copyright that emphasizes its distinct character. I resort primarily to James W. Harris' theory in Property and Justice, and in particular, on the insights that his characterization of property as the twin manifestation of trespassory rules and of an ownership spectrum, bring to the understanding of copyright. While copyright holders' right to exclude has been a focal point in copyright theory, looking at copyright through trespassory rules and the ownership spectrum allows me to discern two distinct yet interrelated property interests that bring a more refined understanding of the property attributes of copyright.

The first interest relates to copyright as a whole when considered as the thing that is the object of commercial exploitation, which satisfies all requirements of a proprietary ownership interest. The second interest focuses on the nature of copyright holders' relationship to the physical embodiment of their works (e.g. the commercial copies owned by consumers or other users): it emerges as a limited, remote, non-ownership proprietary interest. Viewing copyright through the combination of the bundle of rights as an object of commodification and the more limited rights that copyright holders have with respect to disseminated copies of their works puts greater emphasis on the property attributes of copyright while underscoring their limited scope. For instance, viewing copyright through two distinct proprietary interests confirms that copyright holders cannot own their works once they are commercialized. This illustrates how a property lens may in fact narrow the scope of copyright, and challenge the perception that associating copyright to property inevitably leads to its expansion. As copyright holders' legal and technical powers of control increase, as much as users' power of uses of copyright works multiply, the temptations of drifting one way or the other on the debate regarding the property attributes of copyright are high. While misinterpreting the consequences of the property attributes of copyright may lead to unwarranted expansion, distancing copyright from property for fear of expansionism is problematic from a legal and normative standpoint. Acknowledging the property attributes of copyright has the important additional benefit to reveal more sharply the inherent tension that subsists between the competing property rights of copyright holders and users in the embodiment of the works. It levels the playing field by minimizing the tendency to apply double standards to the competing rights.

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