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 exclude 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:Â 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 in 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?
It is pretty straightforward.
There are privileges concerning intellectual works, and there are (natural) rights concerning intellectual works.
Copyright is a privilege granted for the benefit of the press (necessarily arising in each original work – a work that involves no copy).
Moral rights refer to the (natural) rights pertaining to an intellectual work and its use.
Unfortunately, in many jurisdictions the understanding of moral rights has been infected by the unnatural aspects of copyright and thus takes up a more proprietary aspect.
For example, instead of a moral right to integrity being a matter of truth (that a work presented as the author’s is indeed the unadulterated work of the author), it is improperly taken to mean that an author has the power to veto any modifications or derivatives they feel to be insulting to their work or reputation.
In being indoctrinated to believe copyright is a right, people are then confused when confronted with a natural right. For example, people wonder how an author can have a perpetual right to identify themselves as the author of their work when they can only prevent copies of their work for a century or so. This is because the natural right to truth is inviolable and belongs to all, not just the author. Whereas, the privilege of suspending everyone’s right to copy is granted at law and thus arbitrarily limited. Authorship of a work is a fact and is eternal.
As for the ‘doctrine’ of first sale, it’s only called a ‘doctrine’ because some would like to undermine consideration of copies as the property of their purchasers. Copyright only suspends the right to make copies. It does not impinge upon the recognition of an authorised copy as the material and intellectual property of its purchaser. When you buy a book, you retain the natural right to exclude others from it. Only your natural right to make copies or otherwise communicate its expression has been abrogated by copyright. You at least retain the right to exploit and communicate the knowledge therein. So, selling what is your property (since no copying or communication is involved) cannot infringe copyright. What some claim undermines this is if a purchaser performs an act only permitted by a license attached to the work where that license is conditioned upon the purchaser consequently forfeiting ownership of the work. However, since no agreement or exchange actually occurs this is not a valid transfer of property. In any case, sale of the work simply means that the purchaser could not complete the conditions of the license and so has infringed copyright – not ‘disposed of stolen property’ (per inferred agreement to transfer its ownership).
Mike, great post, and I appreciate (as always) your engagement with our work. So, to approach it in the hierarchy you’ve set up, my first cut is that our experiments involve the work itself (either as a tangible object (the painting study) or as a owned but intangible object (the haiku study)), as well as one of the rights that might arise in a work — the right to collect some form of rent (a rent induced, in our studies, by the chance of winning the prize). There are other rights we may wish to study. The rights to use the work itself, for example, which I could imagine modeling in an experiment. Or that right to receive attribution. We’re thinking about these next steps now. More soon.
“an intangible original work of authorship (which may not be capable of ownership . . . ), and rights in that original work of authorship — copyright — . . . which are, under many circumstances, capable of being owned and exchanged.”
I don’t get the distinction between these two at all. What would it mean to own something other than that you have rights to it?
Bruce, good question! I am paraphrasing Ray Patterson, so for a full description I recommend that you read his work.
The basic point (as I understand it) is that copyright creates transferable (i.e., ownable and alienable) “rights” rather than owned “works of authorship.”
To illustrate:
Assume that I own a physical copy of a book, the text of which constitutes a novel.
As chattel property, the physical object belongs to me.
That object embeds something that is a “novel” in colloquial and perhaps literary conversation, but that is “an original work of authorship” in copyright-speak. Despite the fact that I own the physical object as chattel property, I do not own that “original work of authorship.” Most of that should be common ground.
Ray’s point was that *no one* owns that “original work of authorship.” It is, in fact, unowned. (Ray argued that the First Amendment dictated that outcome; I have not yet come around fully to his conclusion.) Copyright does attach to that work of authorship (in fact, it is only “an original work of authorship” at all by virtue of the fact that copyright law declares it to be so), and by attaching to that work of authorship copyright generates a series of exclusive rights concerning that original work that are owned in the first place by the author of the work. The author owns the copyright, in other words, rather than the work, and when the author engages in transactions concerning the novel, the author is in fact transferring (selling, licensing, giving away) some or all of the rights defined by the copyright in the work.
Colloquially, we speak of “licensing the work,” but the semantically and conceptually correct way to understand what is happening is “licensing the copyright [or the right to distribute the work, or some subsidiary portion of the right to distribute the work, and so on].”
I certainly appreciate the fact that both copyright scholars and copyright lawyers rarely distinguish these things, and the fact that many copyright scholars and lawyers either don’t get the distinctions or think that they don’t matter. But I am not alone in pursuing this argument — versions of it appear not only in Ray Patterson’s work (and in mine) but also the work of scholars as diverse as Justin Hughes, Julie Cohen, and Funmi Arewa.
Thanks, I’ll try to chase this down. Assuming there’s some sort of meaningful distinction at work, it would seem to apply to all property, not just copyrights. I.e., real property is a legal concept. No one can own real property, you just have various rights to the property recognized by property law.
These issues arise in patent as well as copyright. As Edward Walterscheid has noted (in his book on the nature of the IP Clause), at 15 n.48 (italics omitted): “The term ‘property right’ as used herein involves the limited-term exclusive right with regard to the invention as opposed to a property right in the invention itself. The distinction is an important one, for as Machlup has pointed out, ‘it is almost embarrassing how often the controversial idea of a property right in invention is confused with the noncontroversial idea of a property right in a patent.” See Fritz Machlup, An Economic Review of the Patent System, U.S. Senate, Comm. on Judiciary, 85th Cong., 2d Sess. (1858) at 53.” Not only does the intangible idea (the invention) and “ownership” of it raise potential first amendment issues, but also the intangible level affects natural rights theories of property in it, and of different kinds of fairness and utility arguments regarding which property needs to be protected. And, as both Machlup and Mike have noted, keeping these levels clear is not something people do well.
Bruce,
Take a look at the last piece that Ray Patterson (co)authored – http://www.houstonlawreview.org/archive/downloads/46-2_pdf/01_Patterson.pdf.
I don’t think that one has to conclude that the tri-partite view of IP works extends automatically to all property. First, of course, IP may not be property at all in any but the most trivial, colloquial sense; that was Ray’s view. Second, calling something (or I should say, some “thing”) property begs the question of what that reference means; all forms of propeprty come with their own sets of definitions, duties, and rights. See, among many, many others, Mark Lemley. Third, simply look at the statute, which Ray did; the concept of the “original work of authorship” is doing a lot of work. See the work of Justin Hughes. Fourth – and here is where I’m not completely sold on Ray’s work – one of the reasons that copyright is different from other forms of property is the intersection with the First Amendment. Even without the First Amendment, the public goods argument about copyright makes no sense (at least to me) without the tripartite division.
Thanks Mike for the link and the other references. At the risk of testing everyone’s patience, I’ve looked briefly again at the Patterson article, which I confess I’ve never read all the way through. I’m still not getting this, and it’s unclear to me whether I’m missing something or not.
Here’s Patterson/Birch at 277:
Obviously there’s a difference between a copyright and a work of authorship–the copyright is in the work of authorship. But the first two sentences seem to be talking about the entirely uncontroversial distinction between copyrights and material objects. Then the last sentence somehow concludes out of nowhere that the statute “does not grant ownership of the work itself.” Huh? Nothing in this has disproved the notion that the copyright is *itself* a legal right of ownership of the work.
There’s more on 278:
OK, so it would be possible to imagine a copyright statute without any limitations at all on the copyright. But so what? Most legal rights have limits. This does not mean that copyrights are not rights of ownership in the work.
There is a discussion at the beginning of Chapter 3 about how the the various rights are interrelated that I somewhat agree with, but I don’t see how that compels some sort of strong distinction between property rights and regulation.
We may be talking past one another, and a blog is a poor place to clarify that kind of understanding (if it is a misunderstanding).
I’m not suggesting a strong distinction between property rights and regulation.
I’m not sure what you mean by the phrase “copyrights are [] rights of ownership in the work.” Copyright is a set of legal rights in a work of authorship. I don’t see how the “ownership” piece adds anything.
That, I think, was P/B’s point: talking about “ownership” of the work of authorship clouds matters rather than clarifies them. Again, P/B go a step farther than I think that they need to, asserting that the work of authorship cannot be owned. My point is merely that the work of authorship is an analytically distinct thing.
Thus, the pieces of P/B that you quote strike me as confirming my point that there are distinctions among (i) a copyright [an intangible legal right]; (ii) a work of authorship [an intangible phenomenon that is relevant to and even defined by copyright law]; and (iii) a material object in which that “work” is “fixed.”
“Ownership” as I understand it is just shorthand for a certain set of rights–property rights. If you have own something, you can use that thing in various ways without getting someone else’s permission (no one else has a legal right to stop you), and you can stop others from using it in various ways without getting your permission (you have a legal right to stop others). It seems to me that a copyright is exactly that sort of right. So while I agree that a work of authorship is not a copyright, the copyright is a property right in — or right associated with ownership of — the work of authorship. As far as I can see, this is exactly analogous to property rights in physical property and the concept of what the physical property is, where it starts and stops, etc. E.g. my property right in a particular red ball doesn’t extend to all red balls — that’s just how we conceive of property. But that doesn’t mean I can’t own the particular red ball in front of me, and avoiding talk about owning the red ball in favor of only talking about owning rights to the red ball adds complication without any clarity.
OK. Now I see the gap.
If I own a “work of authorship,” then I would own that “work of authorship” in all of its many physical manifestations: in every physical copy of the book that a literary “work of authorship” appears as well as in copies of films, or videogames, or lunchboxes that likewise embody that same “work of authorship.” I would own one “thing,” but only in a manner of speaking, and in a way that is quite different than my ownership of the ball. Because the ball is physically unique. The “work of authorship” is unique in a conceptual sense but not in a physical sense.
This is public goods theory 101, I think: We don’t speak of “ownership of the work of authorship” like we speak of “ownership of the red ball” (at least, I don’t) because of the differences between them, rather than because of their similarities. Given those differences, and to address those differences, copyright in a particular work of authorship is a set of rights that is different than the set of property rights that attaches to ownership of a particular red ball.
Metaphysics aside, does this all pay off, from my perspective, in doctrinal terms or in practical terms or both? I think that it does.
First sale is certainly one doctrinal payoff; if the owner of the copyright in the work of authorship embodied in a particular form “owned” the work of authorship, then the first sale doctrine would be difficult to understand. First sale makes sense because the copyright owner has a limited right to control distribution of copies of the work. One might argue that the copyright owner “owns” the work in a particular copy and that the copyright owner’s “ownership” is somehow “trumped” by the ownership interest that attaches to the particular copy. A blog comment isn’t the place to carry on that point; I am sure that it needs more elaboration but don’t have the time here.
Beyond doctrine, the first sale point opens the door to practical payoffs in terms of software licensing generally and to various “tethering” schemes in open source and Creative Commons licenses particularly. I have written elsewhere at great length about why software licenses have familiar form and discomforting content; they blend licenses of works and of rights in ways that consciously manipulate the distinctions among categories that I noted in the original post.
Suppose, in other words, that I buy a book (a tangible, analog book) and in the course of doing so acquire a “license” — let us say that the license is physically attached to the book — that forbids the possessor of that book from reselling it. Assume that I did not “agree” to that license. I give the book to a friend. Can the friend resell it? If not, why not, given 109(a)? If so, why? Does the “license” attach to the copy, or to the work, or to both? Or to neither?
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