The Heart of the Matter: the Property Right Conferred by Copyright - Douglas Y'barbo

• Publication year: 1998

The Heart of the Matters The Property Right Conferred by Copyrightby Douglas Y'Barbo^*

All puffed up with vanity we see what we want to see to the powerful and the wise the mirror always lies

. . . let's paint the mirror black paint it black.

— Neil Peart, War Paint

I. INTRODUCTION AND SUMMARY

A. Introduction

The purpose of this Article is to offer a single coherent model that explains copyright law's essential features and to apply the model to reconcile the apparently disparate infringement decisions that comprise contemporary copyright law.

The fundamental premise underlying copyright law—and the one that I intend to dislodge—is that a copyright is a limited property right in relation to the author's original text. The thesis of this Article is that a "copyright" is not an enforceable property right in relation to a particular work of authorship or the expression embodied in it (i.e., "a text"). Instead, I shall demonstrate that it is a far more qualified property right in relation to a legally structured market position. Put another way, copyright infringement is best viewed as an unfair intrusion upon the copyright owner's actual or putative market position from which to exploit his or her text, rather than as an isolated, unauthorized borrowing of original portions of the copyrighted text. One material implication of this view is that copyright law is far more closely related to common law misappropriation of the type found in INS v. AP¹ than to a pure property regime (for example, patent law).

For years commentators have debated whether copyright is the ideal regime to encourage the creation of original works of authorship.² Yet no one has posed the predicate question that seems so obviously crucial to the debate: what does copyright law actually grant to the author? Or, precisely in what does the property right reside? Instead, commen-tators have assumed that the answer was in every instance: the text. Everyone, it seems, has implicitly assumed that copyright law confers a property right in relation to the actual text that the author creates (and, of course, substantially similar abstractions from it).³ Indeed, the question whether a lifetime monopoly is necessary to encourage the creation of original works certainly depends upon the breadth of the monopoly one has in mind.

This Article also responds to much of the recent commentary offering proposals for reform of copyright law. A discussion of these efforts should better orient the reader to the novel approach offered in this Article. The response does not appear in a single section, however, but is placed as brief digressions throughout the text as issues arise that implicate particular commentary.

B. Summary

1. The Thesis. The objective of this Article is neither piecemeal revision nor a sweeping polemic followed by an unrealistic and unsub-stantiated proposal for reform. Instead, I intend this Article to furnish a comprehensive model that explains and justifies the essential features of the copyright infringement standard. This section presents the thesis along with a thorough summary of the major grounds of support. The reason for this detailed summary is to allow the reader to quickly assess the major points offered in support of this Article's thesis before I proceed to a more exhaustive discussion that follows.

The Copyright Code defines a copyright claim in a text as though it were property.⁴ It expressly enumerates rights over which the copyright owner has exclusive dominion and later defines the unauthorized exercise of those rights as "infringement."⁵ Yet the real test of whether something, particularly an incorporeal something, possesses the attributes of property depends upon whether the property owner has the absolute right to exclude all others (i.e., is it an enforceable right and against whom) and whether the owner has the right to exercise complete control over his or her property.⁶ Therefore, a regime based on the grant of property rights (i.e., exclusive rights to make copies, prepare derivative works, and so forth) should condemn any, or almost any, unauthorized exercise of those exclusive rights as an improper intrusion upon the copyright owner's property, against anyone. Copyright law does not. Moreover, a regime based on the grant of a property right in a text should, of course, subsume a mechanism—either through an ex ante registration practice or judicially as a predicate to the infringement analysis—to determine the boundaries of that property right in the thing borrowed. Copyright law does not.

Instead, unlike patent law, a copyright plaintiff must, as part of her prima facie case, affirmatively disprove that the defendant independent-ly created the accused work (i.e., without copying from the plaintiff's work). More specifically, the copyright plaintiff must show that the defendant copied from the plaintiff's work. Proof of copying then permits the factfinder to infer that the accused infringer substantially reduced his overall cost of expression (i.e., cost of creating the work), which would allow her to set a price below the plaintiff's marginal cost because the former has a lower cost of expression to recoup.

The ultimate infringement decision is left, in the case of fiction works anyway, to the "ordinary observer" who, after a deliberately unanalytical review of the two texts, condemns the latter as an infringement if it appears to him to have been derived from the former text. It is impossible to overstate the judicial emphasis on the "unanalytical" character of this test; thus, "[t]he two works involved in this appeal should be considered and tested, not hypercritically or with meticulous scrutiny, but by the observations and impressions of the average reasonable reader or spectator."⁷

This dependence on the consumer's perception of the accused text compared with the original is the true sine qua non of copyright infringement; without this, then regardless of the quantitative extent of copying, infringement is rarely found, as we shall see. Put another way, according to the contemporary copyright infringement standard, merely borrowing protectable expression is not enough. The average consumer must actually perceive some similarity; otherwise, there is no infringe-ment. Indeed, a thorough review of the case law reveals an astonishing-ly poor correlation between the frequency of infringement verdicts and the quantity of protectable expression taken from the first text.⁸ This observation alone suggests an alternate criterion by which copyright infringement is actually determined.

For many reasons, some of which are discussed in more detail later, this is a peculiar way to enforce a property right that resides in a text. For instance, in the case of patents the accused device and the relevant patent claim are compared element by element. The overall similarity between the device and the claim is irrelevant; instead, what matters is whether every element comprising the claim is present in the accused device. Only then does the similarity become infringement. By contrast, copyright law deliberately eschews a piecemeal analysis of the two texts in favor of the factfinder's desultory hunch. Indeed, not only does copyright law not rely upon an analytical comparison of the two works, but it expressly forbids it, electing instead for the ordinary observer's unreflective impression. If we assume that copyright law grants a property right in relation to a text, then the ordinary observer test is among the least reliable or sensible means of enforcement. In many instances the ordinary observer, by his deliberately casual inspection of the two texts, cannot possibly determine whether one contains protect-able expression borrowed from the other (for example, suppose one was a novel, the other a film). But what the observer can do is determine whether a putative consumer will confuse the two works, believing one to be derived from the other. The only possible rationale for this legal standard then is that it protects the copyright owners from harm to their preferred market position—harm whose proper measure is consumer confusion over the original and accused works. Nonfiction works are judged differently (the ordinary observer standard is not used) though with the same result and, as we shall see, for the same reason.

Finally, this latter observation suggests that the relationship between the copyrightable features of a particular text and those elements responsible for its aesthetic appeal (and hence, roughly, its economic value) is remote. In other words, quite often those elements of a text responsible for its aesthetic appeal are not elements that independently qualify for copyright protection (e.g., they are not original, too abstract, etc.). This fragile relationship between copyrightability and economic value further suggests that the property right conferred by copyright resides in something other than the text.

None of these facts is consistent with a regime that grants a property right in strict relation to a text, and taken together, they are convincing evidence that it does not. I suggest that the only plausible explanation is that a copyright is more correctly characterized as a property right in relation to a legally structured market position rather than as a property right in relation to a text.

In summary, my thesis is that a "copyright" is not an enforceable property right in relation to a particular work of authorship or the expression embodied in it (i.e., "a text"); it is instead a far more qualified property right in relation to a legally structured market position. My argument in support of this thesis consists of the following bases. First, no such property right in a text is ever defined either during registration or during litigation. Second, the genuine focus of the infringement test is on the method of infringement rather than what is infringed. Third, the ultimate infringement analysis is left to the...