Spurred by William Patry’s recent observation that Benjamin Kaplan’s 1967 book An Unhurried View of Copyright “is well-known in this country but rarely read,” I’ve been reading it. And it is a too-brief pleasure! The book’s three parts correspond to the three Carpentier Lectures Prof. Kaplan delivered in 1966 at Columbia Law School. In the second part, Kaplan surveys the then-current practice under the 1909 Copyright Act (the last major revision that preceded the 1976 Act’s overhaul). He offers an interesting reflection on the fitness of the word “property” for copyright, a reflection which recalled to me my post of last month about the name of the AALS Section on Intellectual Property Law. I quote the key Kaplan paragraph below the fold …
Kaplan’s Unhurried View at p.74:
“Examining the view from the top of the hill, I find one temptation easy to resist, and that is to sum up copyright with just the word ‘property’ or ‘personality’ or any one of the other essences to which scholars, foreign and domestic, have been trying to reduce the subject since before the time of Mansfield. To say that copyright is ‘property,’ although a fundamentally unhistorical statement, would not be baldly misdescriptive if one were prepared to acknowledge that is property and property, with few if any legal consequences extending uniformly to all species and that in practice the lively questions are likely to be whether certain consequences ought to attach to a given piece of so-called property in given circumstances. In the same way we might make do with ‘personality’ or some other general characterization of copyright. But characterization in grand terms then seems of little value: we may as well go directly to the policies actuating or justifying the particular determinations.”
There are echoes of this in Hanoch Dagan’s recent essay, Property and the Public Domain.