Some time back, I planned to post a short review of Bobbi Kwall’s recent book, The Soul of Creativity. The book summarizes a lot of recent thinking (including her own) about the law of moral rights and copyright and offers a new framework for adapting US copyright to international moral rights norms. But Jacqui Lipton beat me to it, and I’ve had to wait for an opportunity to post something distinctive about the book — and about what bothered me about it, despite its abundant strengths.
The opportunity recently presented itself: a pair of outstanding recent papers by Chris Sprigman (University of Virginia) and Chris Buccafusco (Chicago-Kent). One is “Valuing Intellectual Property” ; the other is “The Creativity Effect.” Both are studies in experimental economics. The question that the authors explore, via cleverly designed games, is how “creators” identify and value the “works” that they create. In different respects, both papers suggest that “creators” tend to value their “creations” more than purchasers or third parties do. That finding has important implications for the design of an IP rights system, at least if that design is premised on creating conditions for efficient transactions in IP rights.
The link between the results of research on “the creativity effect” and arguments about “moral rights” — despite their abundant differences — lies in the quotation marks that I insist on including in the preceding paragraph. I don’t want to be hard on Sprigman and Buccafusco, whose work is very important, much needed, and incredibly thought-provoking, or on Bobbi Kwall, whose book is exceptionally thoughtful and in almost every respect, admirably nuanced. Rather, the pairing of their works in my recent reading list prompted the thought that IP scholars of many stripes often do not do enough to break down not only what they mean when they talk about “creators” but also, more importantly for my purposes, “works.”
The idea of “creators” gets kicked around and broken down all the time. I want to focus briefly on “works,” a term and a concept that seems rarely to get equivalent attention. The concept of the “work,” sometimes the “work of authorship,” sometimes “the creative work” — terms and phrases often used interchangeably — play central roles in thinking about copyright — just as the concept of the invention plays a central role in thinking about patent law.
Moral rights scholarship, for example, is often quite ambiguous (perhaps deliberately so) about what it is, precisely, that the creator/author has created that justifies the attachment of some body of moral rights. Some of the ambiguity is traceable to the overlapping lineage of Hegel and Kant in thinking about moral rights; some of the ambiguity is tied to the complex semantics of the phrase “work of authorship” and/or the term “work”; and some of the ambiguity is tied simply to muddled thinking about what it is that we (the ambiguous collective “we”) think that creators “do.”
That last source is what I want to focus on here, though the other sources are also quite important. Creators create things, which they may call works, and which they may identify as intangible mental products, as tangible things, or / and (I don’t exlude this possibility) both. Creators don’t create “works of authorship”; copyright law defines and identifies “works of authorship,” and the relevant subject of that class, “original works of authorship,” by studying the output of creators and deciding how to draw lines around things that the law (policymakers, judges, licensing lawyers, and rights clearance bureaucrats, and consumers as participants in legally-defined markets) calls “works.” These processes are not independent of one another; in fact they depend on each other. But the scholarship, and by extension much of the lawmaking that derives from and depends on the scholarship, often does not draw the distinction.
The same observation applies with essentially the same force to law-and-economics treatments of creativity problems, which is the tradition that Sprigman and Buccafusco explore. They ask: What do creators think of the works they have created? I ask: What works are we talking about? The works that creators believe that they create? The works of authorship that copyright law defines? The rights in those works of authorship, which are likewise given by copyright law, though importantly distinguishable from the works of authorship themselves? Reading these two papers, it is often not easy to tell which works are at work.
Tangible object? Intangible work? Intangible “original work of authorship”? Rights in that “original work of authorship”? I’ll end this post and leave for a later time and a later medium (perhaps) the hard work of figuring out when and how these distinctions matter. I think that they do. I subscribe to the theory, perhaps best articulated by Ray Patterson, that every creative “work” embodies at least three levels worthy of analysis: the tangible object that is capable of ownership (or at least of legal regulation), an intangible original work of authorship (which may not be capable of ownership – Ray argued that the First Amendment affirmatively barred enforcing claims of ownership at this level — ever), and rights in that original work of authorship — copyright — which constitute the relevant regulation and which are, under many circumstances, capable of being owned and exchanged.
Colloquially, of course, these three “things” are insanely difficult to keep separate, even if one wants to do so. And not everyone subscribes to the idea that there are three levels of analysis to worry about, least of all that an unownable “work of authorship” lives in the center of every creative work — even highly creative ones. Moreover, computer programs screw all of this up, especially to the extent that one’s understanding of the levels is driven by economic considerations. Computer programs appear to be public goods at both the “tangible object” and “intangible work of authorship” levels (whereas books are public goods at the latter level but not the former). That distinction leads to doctrinal problems ini areas such as first sale, and to potentially problematic analyses like the arguments offered in the Ninth Circuit’s recent opinion in Vernor v. Autodesk.
The way forward? Is there a sensible way to integrate the philosophical assumptions and commitments that are at the core of moral rights thinking, and the economic arguments that explain much (though not all) of the behavior that we observe?