Category Archives: Copyright Issues and Legislation

Copyright Information Notes, Copyright Issues and Legislation

Copyright FAQ for government works.

There is a nice website, just updated in August, that addresses a great many copyright questions as they relate to works created by the U.S. federal government, under contract with the government, or using government funding.  The site is created by CENDI (the Commerce, Energy, NASA, Defense Information Managers Group), and also provides brief answers to more general copyright questions under the categories of “Glossary of Terms,” “Copyright Basics,” and Use of Copyrighted Works.”

For scholarly authors, however, the biggest value of the site is the section answering questions about copyright in works created under a federal grant.  As the website explains, copyright in works created using government grant money does not automatically belong to the government, but contract terms may place some restrictions on the use of those rights by the author.  This is exactly the case with the NIH Public Access policy, where copyright is owned by the author of each article that is based on funded research, but it is subject to a contractual requirement that a non-exclusive license be given to the NIH for inclusion of the work in PubMed Central.

Also, the site offers some guidance about using government works, an issue that often arises for scholars around everything from government survey maps to census data to photographs taken by active military personnel.  This is not really the place to gain all of one’s knowledge about copyright, but it is an excellent source for understanding the complexities of using government works and creating works under various agreements with the government.

Copyright Issues and Legislation, Fair Use, Technologies

“Fixing” Fair Use?

Whenever I hear suggestions that fair use should be “fixed,” I am reminded that there are two very different usages of that term. When you get your car fixed, it is returned to the state where it performs as it was meant to do. When you get your dog “fixed,” however, that is not the result. So I approach all suggestions for fixing fair use from the perspective that we do not want to render that important exception to copyright sterile and, thereby, unusable. We may want to fix fair use like you fix a car, but we must be careful not to fix it like you fix a dog.

From this admittedly cynical perspective, I was pleased by what I read in Mark Glaser’s “e-mail roundtable” on the question “Should copyright law change in the digital age.”

Glaser asks two lawyers — Peter Jaszi and Anthony Falzone — and two experts in new media — JD Lasica and Owen Gallagher — how fair use might be changed to better accommodate new uses like remixes that are made possible by digital technology. Interestingly, none of the four suggest actually tinkering with the language of section 107 itself, and both lawyers point out that the vagueness of fair use, while it can be maddening, is actually a strength. Only a flexible and dynamic (to use Jaszi’s words) doctrine can truly be technologically neutral and create the space necessary to experiment with new media and new uses that were unimaginable to the drafters of the law. What makes fair use frustrating and uncertain also makes it adaptable and supportive of creativity. “Fixing” fair use by removing its vague reliance on factors that can be applied in any situation would indeed be like fixing the dog.

Instead, these four experts discuss what might be added to our law to make certain uses that have become prevalent in the digital age less risky. By creating “safe harbors,” for example, that essentially immunize certain acts, at least when done for non-commercial purposes, the fear of using fair use, and the cost of adjudicating it, can be reduced. Lasica goes further and suggests some additional positive rights that could be incorporated into the copyright law, such as the right to make personal back-up copies, to time-shift and to change formats. Both of these suggestions would leave the fundamental structure of fair use, vague and flexible as it is, intact; they would simply take some common digital uses outside of its purview. Fair use would still allow for new technologies and creative uses not yet conceived, but the cost of reliance on fair use would be reduced by specific exceptions for activities that are now well-known and clearly of benefit to consumers. These proposals exemplify the right way to “fix” fair use.

Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing

Updates on NIH Public Access

It seems like a good time to collect some of the interesting news items coming out lately about the NIH Public Access Policy, which has now been mandatory for just over 4 months. Most of these items come from Peter Suber’s Open Access News blog, to whom we direct a sweeping tip of the hat.

First is the important clarification that NIH issued about how author submission occurs. In greatly simplified language, the NIH outlined four methods by which submission can happen — publication in a journal that has an agreement to put all of its contents in PMC, arrangements with the publisher for deposit of a specific article, self-deposit of the article, or completion of the deposit process when the publisher has sent the final peer-reviewed manuscript to PMC. For more details, see the NIH policy home page.

Next came this report in Library Journal that submissions to PubMed Central have more than doubled in the six months since the mandatory policy was passed by Congress.

Then last week Oxford University Press announced that it would begin depositing articles that are funded by NIH for authors. In effect, this means that Oxford authors will be selecting the fourth of the methods NIH has identified, which is much easier for Oxford authors than the self-deposit on which they had to rely up till now.

Finally there is this note from Library Journal Academic Newswire, which both reports on the OUP decision and notes that NIH is confirming the fact that most journals which handle deposit for the authors are selecting a twelve month embargo on the articles, the longest embargo currently permitted by law.

Taken together, I think these reports indicate two things. First, the Public Access Policy is working, by which I mean that public access to bio-medical research is increasing dramatically without creating any real danger to the publishing industry. The announcement by OUP that they would cooperate in depositing articles indicates that publishers are coming to terms with the requirement and accepting it. Even the news that most publishers elect the 12 month embargo is a sign of growing accommodation; that overly-long embargo provides even the most skittish publishers enough security to adapt to the growing open access movement. Shorter embargoes are undoubtedly sufficient to protect publisher revenues, but the move to those shorter delays will have to take place gradually, as more and more publishers realize that, whatever the threats to their traditional business models are, NIH Public Access is not one of them.

Second, I hope that we are seeing an awakening realization on the part of scholarly authors that they have genuine choices as they consider how to disseminate their work. The soaring PMC submission rate, and the decisions by major publishers not to resist it, suggest that making submission easier for authors is rapidly becoming a competitive advantage. As authors realize that they have control over their work for as long as they retain copyright ownership, publishers might have to take on a service role they have never really played before, competing for the best scholarship by help authors meet the requirements of the funders who underwrite the research.

Authors' Rights, Copyright Issues and Legislation

And advice from up north

When I first heard that the Canadian Association of University Teachers had approved an intellectual property advisory for faculty authors encouraging them to retain copyright in their published academic articles (hat tip to Heather Morrison), I was delighted and planned to post an enthusiastic plug for the short document in this space. I still am excited by the decision of CAUT, but another recent event has provided a sense of context that I think helps show how urgent the advice given by this Canadian counterpart of the Association of American University Professors is.

William Patry is a well-known copyright practitioner and scholar; it is hard to imagine a more distinguished resume for someone wanting to comment on copyright law today. His copyright blog has been a valuable source for me, often cited here, of interesting information and thoughtful reflection. So I owe Bill a lot of gratitude for the work he has done over the past four years, and am deeply saddened by his decision to give up his blog.

Patry gives two reasons for the decision to stop sharing his learning and insight in this format. First, he is finding that it is increasingly difficult to get others to understand that his blog is an expression of personal opinions and not those of his current employer. Second, he says that the state of copyright law has simply made it to depressing to constantly be the bearer of bad news. As he eloquently expresses the current state of things,

Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits.

This analysis seems discouragingly correct to me, but it also reminds me that, in the small corner of the copyright world that is scholarship, there is something we can do to alleviate this problem. And the Canadian Association of University Teachers have clearly told us what that something is — retain copyright.

In its intellectual property advisory CAUT expresses concisely both the problem:

Without copyright ownership, academic staff can lose control of their own work and
may no longer be entitled to email it to students and colleagues, post it on a personal or
course web page, place it in an institutional repository, publish it in an open access journal
or include it in a subsequent compilation.

and the solution:

Journals require only your permission to publish an article, not a wholesale transfer
of the full copyright interest. To promote scholarly communication, autonomy, integrity
and academic freedom, and education and research activities more generally, it is
important for academic staff to retain copyright in their journal articles.

CAUT offers us a way out of the increasingly suffocating dilemma regarding copyright in which academia finds itself. We must hope that US educational groups and institutions of higher education will follow suit, and that individual faculty will continue to assert their rights as the original copyright holders in their scholarly writings.

In the meanwhile, a heartfelt thank you to Bill Patry for sharing his wisdom with us.

Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing

Insights from across the pond

One aspect of the international treaties on copyright to which the US is a party has been getting quite a bit of attention recently. The “three-step test” is a provision in the Berne Convention and in the TRIPs (Trade Related aspects of Intellectual Property) Agreement that broadly defines the role of limitations and exceptions in copyright law. It is possible to read the three-step test as providing only a very small window for limitations on and exceptions to the exclusive rights granted by copyright, and “Big Content” has been very active in promoting that interpretation. Recently a legal opinion letter was submitted to the National Institute of Health trying to argue that the NIH Public Access Policy, for example, violated the three-step test.

Applying the three-step test to something like the NIH policy is absurd, but the argument is made for its value as a scare-tactic. Politicians and bureaucrats are very sensitive these days to international aspects of intellectual property, so the three-step test is a very handy club with which to pound into legislative heads one’s own economic interests. So it is very refreshing to read the new Declaration by a group of European IP scholars from the Max Plank Institute on Intellectual Property, Competition and Tax Law on “A Balanced Interpretation of the “Three-Step Test” in Copyright Law.” The authors of the declaration argue convincingly that the test should be understood as a comprehensive framework for interpreting limitations and exceptions, rather than as a set of three steep hurdles over which any proposed exception must leap. They emphasize that the interests of third parties, as well as domestic decisions about the best way to restrict IP monopolies, are not incompatible with the international three-step test.

Beyond its main point, however, I was struck by a simple distinction that is made within the declaration that, to me, has implications well beyond the debate over limitations and exceptions. The authors remind us that the implications of any proposed limitation or exception for both “original rightsholders” and “subsequent rightsholders” should be considered. This simple recognition that the interests of “authors,” who are the original holders of copyright, are often not identical to or necessarily compatible with the interests of those to whom those rights are traditional transferred is profoundly true in the area of scholarly publishing. As I have stressed many times, scholarly authors are usually rewarded almost exclusively by reputation and by reward structures internal to their institutions. Thus their interest is usually in the widest possible distribution of their work. The “subsequent rightsholders” of scholarly work, however, are interested in profits, and their interests may prevent the wide distribution that would best serve scholarship.

To my simple mind, this distinction carries enormous power. Throughout history, all the way back to the 18th century “battle of the booksellers,” publishers and other distributors have appealed to the image of the poor, starving writer to demand stronger copyright protection. But the interests of the two groups are seldom the same and often conflict. Another recent document on international copyright, the “Green Paper on Copyright in the Knowledge Economy,” issued by the European Commission a couple of weeks ago, reinforces this point. In considering the very strong protections contained in a recent EU Directive on the Harmonization of Copyright, the EC report notes that there have been persistent questions raised about whether these broad exclusive rights actually translate into an advantage for authors of the works, who are, of course, supposed to be the principle beneficiaries of copyright protection. Performers, composers, film directors and journalists all complain, according to the report, that they are not making any extra revenue (no increased incentive) because of those new, stronger protections; all of the benefit is directed to the big distribution conglomerates that take copyright from creators and exploit it for their own benefit. This is the dilemma of scholarly authors on a larger scale, and we should watch the debates taking place in Europe for insights into why it is such a bad idea for scholarly authors to transfer copyright to publishers who do not have the best interests of either scholars or scholarship at heart.

Copyright Issues and Legislation, Technologies

Copyright reform — what would “green” copyright look like?

My wife frequently accuses me of finding copyright and other intellectual property issues everywhere, often where no “normal” person would perceive such a question. So I was both surprised and vindicated to see discussions of “green” copyright in a couple of places recently; surprised because even with all my obsessing about copyright, I had never considered how one might make a more eco-friendly copyright law.

The most comprehensive discussion I have read so far about green issues for copyright reform comes from Michael Giest, the Canadian copyright scholar who is leading a powerful grass-roots opposition to the new proposed copyright law in Canada — Bill C-61, introduced in Parliament several months ago. In a column for the Toronto Star, and again on his fascinating blog site, Geist lists several problems with the proposed law that could hamper efforts to improve the environment (or at least slow the harm we are doing to it). Since a major complaint about the Canadian proposal is that it looks too much like US copyright law, it is fair to assume that these “Canadian” issues are US issues as well:

  1. Copyright law can impact our ability to recycle computers and other electronic devices in order to reduce the amount of “techno-waste” that is generated each year. Protections for software in general and especially prohibitions that prevent circumvention of digital protection measures can prevent new users from gaining access to recycled devices. It is no secret that Apple want to sell each of us a new iPhone every year or so, but there is potential environmental impact to legal enforcement of that business policy. Giest refers to a US case where the potential for this kind of ecological harm was very real — Lexmark v. Static Control Components, in which Lexmark tried to use the DMCA anti-circumvention rules to prevent a competitor from making chips that would allow the re-filling of laser printer ink cartridges. The courts found that such an application of US copyright law would be anti-competitive, but it is worth noting that a contrary decision might also have been anti-environmental.
  2. Protections that restrict copying of software and storage of copyrighted materials on shared networks can inhibit the efficiencies gained through “cloud computing.” If memory-intensive research — crunching huge data sets for example — can be done by a network of computers rather than at a single site, unused capacity can be exploited to reduce the need for multiple institutions to obtain massive computing capacity that may be used infrequently. Copyright law can have a lot to say about whether such shared projects will be feasible.
  3. A similar issue is raised regarding the possibility of consumer storage of memory-intensive materials in networked systems. In the US there already exist network-based video recording services that decrease the proliferation of digital devices that increase energy usage and eventually end up in landfills. US courts have not been consistent in their approach to these services, in part because our copyright law does not directly address the status of copies made solely for personal use. The new Canadian proposal would take up that issue and would authorize only a single copy of consumer-purchased songs or videos. With such a law, not only would consumer choices be severely restricted, the need for many individually owned storage devices would burgeon — good for the consumer electronics industry but bad for the environment.

In addition to these copyright issues that could have significant ecological impact, there are also “green” patent concerns. A recent study has shown the tremendous growth in patents issued for inventions, software and business methods that are aimed at environmental processes and problems. Because there is already so much controversy (and litigation) around software and business patents in general, it is a legitimate worry that the growing number of ecological patents could actually impede the progress of innovation in environmental sciences rather than promote that progress. Patent law, like copyright, is intended to promote innovation through a careful control grant of monopoly, but recent research has shown the significant danger that patents, and the cost of prosecuting and defending them, may be becoming an obstacle to innovation rather than an incentive; a nice, but dated explanation of the potential problems can be found here; this book review of 2008’s “Patent Failure” gives a more up-to-date review of the economic evidence that innovation is being stifled. Research into how to resolve our environmental dilemmas is too important to allow it to be slowed by the inefficiencies of our patent system, and adds another argument for the need for comprehensive reform of US intellectual property laws.

Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing

Making Elsevier look good

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For many years, Dutch publishing giant Elsevier has been a kind of bête noir for academic librarians, serving as principal whipping-post for the exorbitant price increases that have been strangling off the scholarly communications system for over 20 years. But the ground has shifted somewhat, and we have recently observed some academic press and scholarly societies – agencies whose mission is, putatively, to serve research and scholarship – adopt policies that make Elsevier look almost scholar-friendly.

We have recently witnessed the unseemly spectacle of two at least nominally university-related presses suing a university to try to narrow the scope of fair use for academics, calling out by name some of the very authors upon whom they depend for the content that fills the pages of their publications. Now another organization that is supposed to represent scholars, the American Psychological Association, has turned to bite the hand that feeds it.

First there were the threats to sue a major American university library for allegedly using too many examples from the “APA Manual of Style” in the teaching materials it creates to help students learn how to use that citation format. Since continued sales of the Manual depend on students being trained to use it and faculty assigning it, and since there are other nearly identical and completely substitutable style formats available, it is hard to see what these threats could hope to accomplish. Shutting down one’s principal market is a radical and unproductive way to protect one’s copyright.

Now comes the news that the APA is announcing that authors publishing articles in its journals that are based on NIH-funded research “should NOT” deposit their own works in PubMed Central as is now required by law. Rather, they will be required to pay APA $2500 so that the articles can be deposited by the publisher. Since there is virtually no cost associated with the mechanics of deposit itself, and the NIH policy allows an embargo on public availability of articles of up to one year in order to protect the traditional subscription market, it is hard to see what this policy is intended to accomplish other than to force an additional income stream out of the faculty authors who already provide the APA with free content. And there is heavy irony in the APA’s assertion that they can do this “as the copyright holder.”

APA is trying to put its own authors between the proverbial rock and a hard place, and it is behaving as if theirs is a non-competitive market. This is not, in fact, the case – only two of the top ten psychology journals in 2007, based on impact factor, were published by the APA, and one non-APA journal editor expressed pleased surprise at the new policy because it was sure to benefit those other journals. But for years our faculties have behaved as if they were, indeed, captive to specific journals. As scholarly societies are driven, apparently by fear and anger more than a realistic business strategy, to treat the authors on whom they depend with such contempt, one can only hope that this misperception will begin to change.

Two simple and specific messages need to be delivered over and over to our faculty authors if this dysfunctional and abusive system is to change.

First, they need to be reminded that they do have choices about where they publish their work; there is no logic in remaining loyal to a particular journal when the publisher of that title has clearly decide to place profit and self-interest above the well-being of the academy, the discipline, or its scholarly authors.

Second, regardless of where they publish their research, scholars should resist transferring copyright to journal publishers. APA can only tell scholarly authors what that can and cannot do with their work after they have received a transfer of copyright; up to that point they must negotiate, not dictate. Academic presses can only sue universities over e-reserves because they have been given the copyright in those scholarly works in the first place. To cut the Gordian knot that is plaguing our scholarly communications system, we need to make an exclusive right to publish for a limited time (with reservation of some negotiable authors’ rights within that period) the standard for scholarly publishing agreements. As the original owners of copyright, forcing that change is within the power of faculty authors.

NOTE — Half an hour after this post was published, the APA web page referenced above no longer carries the policy announcement and says simply that the page is under review. We shall have to wait and see what APA comes up with, but the two cardinal points mentioned herein remain valid and urgent.

Authors' Rights, Copyright Issues and Legislation, Fair Use

What can best practices do for us?

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As promised, I want to look at a different kind of “new tool” to help users of copyright-protected content figure out what they can and cannot do as they work on new creations.

Best practices are a relatively new phenomenon in the copyright environment. The Center for Social Media at American University, a joint project of School of Communications and the Washington College of Law, has really lead the way in creating statements of best practices around fair use in video production. The first one, produced in cooperation with several documentary film groups, is a Documentary Filmmakers’ Statement on Best Practices in Fair Use. That statement has proved very successful in gaining recognition both amongst filmmakers and from the ancillary organizations like the insurance companies that support and underwrite documentary film projects.

Next there was a report on user-generated video called Recut, Reframe, Recycle that spelled out six creative practices that, the report’s authors felt, were potentially legal but were in danger of being curtailed by the draconian measures being sought by many in the content industry to combat online sharing of video and music files. Even though creative remixing is a very different activity, both legally and in its value to society as a whole, much of the “anti-piracy” rhetoric seems unable to make even the grossest distinctions. Thus the stakeholders in that conversation felt the need to articulate another set of best practices, released last week.

The Code of Best Practices in Fair Use for Online Video is intend to provide support for the activities of filmmakers who create works like “Dramatic Chipmunk,” which is used to illustrate the report’s cover. Such works are new creations built from the building blocks of other people’s work. This, of course, was the original purpose for the “copyright bargain” Congress was empowered to make by the Constitution (although the Framers probably did not foresee some of the results of that bargain!). This new code of best practices describes itself this way: “This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video and backed by the judgment of a national panel of experts. It also draws, by way of analogy, upon the professional judgment and experience of documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses.”

For me, an immediate question is how these statements of best practices differ from the various attempts to articulate guidelines to define fair use, attempts that have caused great anxiety and a notable “chilling effect” on fair use despite the best intentions of those who promulgated them. The quickest answer is that best practices are usually generated from within an industry or an industry segment, whereas guidelines have traditionally been negotiated between users and rights-holders. “Best practices” are not an attempt to define a “safe-harbor” that will necessarily protect one from lawsuit, especially since many such attempts have proved illusory in the past. Rather, their aim is to accurately describe a consensus with a particular user group about what is and is not acceptable. Such a consensus can serve a couple of purposes.

First, it can help prevent the kind of “self-censorship,” or chilling effect, that is all too familiar among users; the decision by a filmmaker to forgo the best shoot or abandon good footage because a copyrighted work was accidentally captured in some of the frames, for example. Best practices can provide reassurance to that filmmaker that what she hopes to do is well within the standard practice through her industry.

Second, best practices could provide courts with exactly the kind of “industry standard” that is useful in determining when to find infringement or to protect a particular use as fair use. These documents can provide courts with a synoptic view of what kinds of practices are necessary for professional filmmakers and amateur videographers alike to create new works. By spelling out what kinds of practice are needed, as far as fair use is concerned, for creativity to flourish, statements of best practice can show courts that the particular industry is acting in good faith and can provide a broader perspective on the specific issue that has come before that court.

Best practices will not solve all the problems in the highly contested world of copyright and user rights, but they can serve a useful purpose. It is important to distinguish that purpose from the more grandiose and unrealistic claims made for copyright guidelines. Best practices may not stave off lawsuits, but they can help courts judge those lawsuits fairly and they can help users avoid letting the fear of a lawsuit overwhelm their urge to create.

Note — after completing the above post I discovered this contribution to a debate about best practices, which I now call to the attention of interested readers.

Copyright Information Notes, Copyright Issues and Legislation

New tools for recording copyrights

Several new tools have recently become available to make copyright record keeping and searching somewhat easier, although it still is not what could be called simple. Perhaps more importantly, another set of “best practices” in fair use has been issued by The Center for Social Media at American University, which offers the opportunity to comment on what these statements of best practices are and what they hope to accomplish.

The first new tool worth noting is from the Copyright Office itself — a new ingestion system that permits, for the first time, online registration of copyrights. It is hard to believe that this is the first time the Copyright Office has stepped away from paper forms, but that is the case. Starting July 1 it is possible to submit an online registration form and pay a fee that is $10 lower than the standard $45 cost of registration. The deposit requirement, which mandates that copies of a registered work be sent to the Library of Congress, will still have to be fulfilled by U.S. mail. It is also possible to track the status of a registration process that is done online. In addition to the online system, there is also a new paper form which uses barcodes to speed processing; the applicant fills out the form online, prints it off and mails it with the regular fee, but it does not take as long, in theory, for the Copyright Office to process. Since registration is still necessary before a copyright holder can file suit for infringement, a quicker registration system should help speed the judicial process a little. It will also make it easier to find copyright owners for works that are relatively new or newly registered.

Searching for copyright owners will become much more urgent if any version of the Orphan Works legislation pending before Congress actually is enacted, so copyright renewal records are as important, if not more important, than initial registrations. For new works, there is no doubt that copyright protection is in force unless there is some form of waiver like the Creative Commons license. But for those works most likely to be orphaned — works published between 1923 and 1963 — it will be vital to know if a copyright was renewed and, if so, by whom. Stanford University has offered a database of copyright renewal records for some time, and now there is a single XML file of both renewal records and original registration records from 1978 onwards available from Google. The digitization of these records required the efforts of several dedicated organizations, including Carnegie Mellon’s Universal Library Project and the Project Gutenberg.

Once this XML file became available, it did not take long for some copyright geeks (no offense intended; I am one myself) to design a simple interface to search these records. This site designed by a law student at Tulane University, under the direction of Professor Elizabeth Townsend Gard, should make it much easier to examine the Copyright Office records, and they are promising a more sophisticated tool by Fall. Whether or not we actually get orphan works legislation, it remains very difficult to find rights holders for lots of different kinds of works, and we must be grateful to all of the folks who have created these tools to make that important task a little bit easier. All of the sites, however, come with the warning that it is never certain, based on a search of these records, that a copyright was NOT registered or renewed; while they will tell us who did file for registration or renewal, it will remain something of a risk to use a work for which one does not find a record in these databases. That is why orphan works legislation is needed, so that a user who makes the effort to search these records and cannot, in good faith, find a rights holder is subjected to a much lesser risk than one who uses a work without any attempt to find out if copyright persists and by whom it is held.

See tomorrow’s post for discussion of a different kind of new tool — a statement of best practices for fair use in online video.

Copyright Information Notes, Copyright Issues and Legislation

How “real” is intellectual property?

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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.”