Toward the end of a session on copyright at the American Library Association’s annual conference last week, Carrie Russell, who is the Director of the ALA’s Program on Public Access to Information, exhorted the audience never to speak about copyright “ownership.” “Rights holders,” she said, do not own anything at all; holding IP rights is not the same as owning “real” property.
Based on the common understanding of ownership, it is easy to see what Carrie is getting at here, and to agree with it. There are fundamental differences between real property and intangible intellectual property. The most obvious is that borrowing or sharing intellectual property does not diminish the supply of it. And a rights holder loses his or her rights after a set period of time, the period set by the statutory grant of those rights. This makes it very clear that intellectual property rights are indeed a creature of law, created by legislative action and not by natural right.
But in truth, all property ownership, at least in the 500-year-old Anglo-American tradition, is similarly limited. It is a truism of property courses in law school that owning a piece of land means holding a bundle of rights, most importantly the right to exclude others from the property. But once real property ownership (as well as ownership of “chattel”) is seen as a bundle of rights (just as copyright is), the distinction between real and intellectual property seems less clear and telling. In a recent blog post about the Israeli copyright scholar Orit Fischman Afori, William Patry has occasion to quote the British philosopher Jeremy Bentham on this topic: “there is no such thing as natural property; it is entirely a creature of the law. … Property and law were born together, and would die together. Before the laws property did not exist; take away the laws, and property will be no more.” If real property is subject to the same limitations as intellectual property — each is a limited set of rights granted by statute rather than a permanent and uncompromisable outgrowth of natural law — it is interesting to ask what the real consequences of the analogy between owning IP and owning a car or a piece of land might be.
This analogy, of course, is a favorite of copyright “maximalists” who frequently complain, for example, that car thieves get thrown in jail while “pirates” of copyrighted music must be sued individually and at great cost to the rights holder. Many would like to view ownership of IP as a kind of “allodial,” or absolute, ownership, and would be surprised to learn that no ownership under our system of law derived from feudalism is actually so absolute. All ownership is subject to limitations imposed by law to achieve a fair balance between exclusive possession and socially beneficial use. If maximalists got their way and IP ownership was really treated just like owning real estate, they might regret what they wished for.
Real property ownership is, after all, subject to lots of limitations. Zoning laws, for example, place strict limits on the use of particular parcels of land; I cannot open a law office in my garage in the neighborhood in which I live because it is zoned for residential use only. Not really very different from all those restrictions on the exercise of copyright found in sections 107-122 of Title 17. And in the world of both real and personal property, the “doctrine of first sale” is virtually absolute; the law looks very suspiciously on any attempt to restrict the “free alienability” of land and often will not enforce such restrictions. IP owners who have recently tried to attack first sale in several court cases would not benefit much if the analogy with real property were strictly applied. Finally, property rights in the bundle that land owners get can be lost if they are not exercised. If I occupy a piece of land for a set period of time — 15 years in many states — and the owner makes no attempt to eject me, I will become the new owner of that land. Imagine how our orphan works problem would diminish if we applied that same principle to copyrights. On this score, copyright owners, whose rights persist for life plus 70 years whether they exercise them or not, are much better off than are those who own land. A copyright holder can choose to exercise their exclusive rights in one case, then ignore other infringements for many years before electing to enforce their rights again; a landowner does not have that luxury.
The relationship between real property ownership and the same concept regarding intellectual property is complex, but both are bundles of rights that are subject to many limitations and exceptions in statute and in common law. Neither copyright maximalists nor those who advocate for more limited IP rights have the argument all their own way when the analogy with land is invoked, but especially for the copyright owner who asserts that his or her rights should be treated just the way real property ownership is treated the message is ‘be careful what you wish for.”