The Property Attributes of Copyright

Featured here is a summary of Pascale Chapdelaine’s paper recently published in the Buffalo Intellectual Property Law Journal and now available here.

Whether copyright is property continues to ignite passionate debate, more than 300 years after the entry into force of the Statute of Anne.  At the heart of the controversy lie various conceptions of property, as well as the causal effect between characterizing copyright as property and its rapid expansion. For some, the expansion of copyright is attributable to the propertization of copyright.  For others, the root causes for the expansion of copyright must be sought elsewhere, or the so-called expansionist effects of qualifying copyright as property are attributable to a misconception of property.

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,[1] 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 scholarship, 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. 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. I argue that misinterpreting the consequences of the property attributes of copyright may lead to unwarranted expansion, but that 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.

 

Pascale Chapdelaine is Associate Professor at the University of Windsor, Faculty of Law, and is a member of IP Osgoode. Pascale Chapdelaine is presently writing a book on copyright user rights (under contract with Oxford University Press).

The article is based on one of the chapters of Pascale’s doctoral thesis that Pascale defended in June 2013 at Osgoode Hall, under the supervision of Professor Giuseppina D’Agostino. Professors David Vaver (Osgoode Hall) and Geraint Howells (City University of Hong Kong) were on Pascale’s thesis committee.


[1] James W. Harris, Property and Justice  (Oxford: Clarendon Press, 1996).

 

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