Copyright law in the United States has traditionally been justified in both economic and property-based terms. In order to incentivize the socially optimal amount of creativity, the story goes, we grant to authors a certain bundle of rights over the work they create for a limited (although significant) period of time. Without this incentive, copyists, who need only to recoup the cost of copying and not the cost of production, would undermine the creator’s opportunity to profit from the work. The story thus assumes that commercial exploitation of creative work is the natural (and desired) end of the creative process and that some form of legal entitlement is needed as a means to that end. The focus thus shifts to the work itself: If the work demonstrates the required originality and modicum of creativity, and is fixed in a tangible medium of expression, it qualifies for copyright protection, regardless of the truth of the incentive narrative.
The longevity of the economic narrative derives, in part, from the identity of the players in the early copyright debates, in which printers and stationers were the primary agitators for increased rights over creative works and individual authors merely useful characters to make more human the arguments. But as various commentators have noted over the years, the economic story can be told only by some creators. We can assume, for example, that if Disney or Random House or Atlantic Records were not able to turn a profit from the creative works they bring to market, they would soon be out of the business. But for others, creativity stories are not tales of buying and selling; they are tales of emotion, passion, and inspiration, of creating without being motivated by commercial exploitation. Such artists are not completely indifferent to how their work is used – they might, for example, very much care about getting credit for their work so as to build their reputational, if not economic, capital. But the traditional copyright narrative, which assumes commercialization, does not map well onto the motivations and interests that these artists demonstrate. We might, therefore, ask whether the Constitution’s goal of “promot[ing] the progress of Science” would be better achieved by focusing less on whether a work is copyrightable and more on the interests of those involved in distributing that work to the public.
In an essay prepared as part of a thought-provoking symposium on intergenerational equity and intellectual property, Julie Cohen engagingly encourages us to rethink the traditional copyright narrative by instead viewing copyright through the lens of corporate property policy. By abandoning the fiction that copyright incentivizes creativity, we can acknowledge that copyright’s primary function is, as Professor Cohen puts it, “to enable the provision of capital and organization so that creative work may be exploited” and thus properly characterize copyright as “industrial policy for the so-called creative industries” (pp. 142-43) – the Disneys and Random Houses who are incentivized by copyright’s benefits. Corporate property policy would view copyright not, as is traditionally done, as a species of real property law – which believes that stewardship is best advanced by a system of exclusive ownership – but as a regulatory tool “designed with the immediate purpose of incentivizing the intermediation and privatization of culture while minimizing cultural obstruction” that would prevent future creators from building on what has come before (p. 149). The corporation is more than simply a fictitious entity that holds assets; rather, it represents a way of coordinating multiple sets of stakeholders and of governing resources through the disaggregation of ownership and management. By talking of managers, employees, and shareholders rather than of owners and users, we can come to recognize copyright as inherently relational and free ourselves from the limited set of regulatory options that property law provides. No longer would an adjudication of the proper scope of copyright law rely on defining the metes and bounds of the property rights at issue; rather, the law would focus on the nature of the relationships between and among copyright’s players.
With the research agenda thus framed, a variety of projects present themselves. One might, for example, as Dan Burk and Catherine Fisk have done, interrogate more closely copyright’s work-for-hire doctrine, investigating whether agreements between employers and employees provide adequate conditions for creativity, including whether appropriate attention is given to employees’ reputational interests. (One starting point might be the language of the Copyright Act itself. Section 201(b), which states that “the employer or other person for whom the work was prepared is considered the author for purpose of this title,” protects corporations’ ownership interests in creative works but does little to acknowledge the noneconomic concerns of the employees putting pen to paper.) Additionally, as Professor Cohen astutely suggests, copyright law might learn from the way corporate law provides oversight of managers by shareholders, thus concerning itself with accountability and intergenerational stewardship in ways that a property-rights regime does not. Corporate law has, the essay also notes, already engaged with various issues, such as social welfare concerns, employment conditions, and collective bargaining, that are not native to property law but that may well become central to copyright law in a modern age. There are, undoubtedly, many more rich connections to be made.
As is to be expected from an article directed at upending the existing framework, however, there are still details to be worked out. If copyright law is still to be about economic incentives, then it seems eminently sensible to retrain copyright’s focus on the corporate intermediaries that are most likely to respond to such incentives rather than to continue to tell a dubious creativity tale. But even if we recount copyright’s new narrative in the context of the traditional “creative industries,” we still must determine who plays which roles in the story and whether the narrative has anything to say about creativity outside the corporate structure. Who are to be the shareholders and who the managers of Mickey Mouse or Harry Potter, to take two oft-used examples? And how should a view of copyright as corporate property policy think about the teenager uploading her guitar composition to YouTube or the fan fiction writer posting a new episode to a fan site? Is such intrinsically motivated creativity simply a byproduct of copyright’s subsidy of the creative industries? Or can copyright as corporate property policy regulate terms of service and other agreements so as to reflect the noneconomic interests of such creators, thereby incentivizing distribution, if not creativity itself?
Professor Cohen concludes her essay with a note of caution, warning that “the corporate-law analogy does not inspire great optimism” as a political matter (p. 164). And it is true that reform is often slow in coming and resistant to implementation, whether at the level of statute or at the level of systems. But reform can’t happen without agenda setting, and significant reform often requires us to rethink our ideological commitments. In a short but very rewarding essay, Professor Cohen’s proposal provides us with a way to do just that.
(Many thanks to Mark Badger and Jessica Silbey for their thoughts on a draft version of this post.)