In his new piece Economically Defeasible Rights to Facilitate Information Disclosure: The Hidden Wisdom of Pre-AWCPA Copyright, Kevin Collins brings his background as a trained architect to bear on the puzzling history of architectural copyright. In Collins’s view, far from being inadequate, as some have contended, pre-AWCPA copyright was a sort of Goldilocks solution: not so strong as to prevent beneficial borrowing, not too weak to provide incentives, but instead just right to solve a particular disclosure problem unique to the design-minded architecture market. In the process, Collins makes a compelling case for tailoring in copyright, and for the importance of theory to doctrinal design.
Before the Architectural Works Protection Act was passed in 1990, architectural works received an unusually narrow form of copyright protection, even as compared with other highly useful works. Pre-AWCPA copyright gave architects the right to prevent copying of architectural drawings into new drawings. But architects could not prevent (or at least most thought they could not prevent) the making of derivative works from those drawings in the form of constructed buildings, nor could they prevent copying of the constructed buildings into new drawings or other constructed buildings. This form of protection was unusual not only because it was, as Collins memorably puts it, “runtish” by comparison to the protection afforded other works, but because it was essentially a “defeasible” right, lost upon the construction of a building that embodies the architectural work. (P. 6.)
All of that changed, of course, with the AWCPA, which now extends full copyright protection to architectural works, save for a couple of unique limitations to the scope of those rights in § 120. Most scholars have viewed this expansion of architectural copyright through the lens of the familiar incentive-access paradigm. Advocates of stronger protection lament pre-AWCPA protection, arguing that it failed to incentivize the creation of architectural works. Critics, on the other hand, focus on the costs of broad protection, arguing that few incentives are needed for architectural creativity, and that strong protection can only inhibit creativity by limiting follow-on creators’ access to existing works. The minimalists therefore favor weak to non-existent rights in architectural works.
Collins largely agrees with the minimalists, on both the incentive and access points. As Collins points out, there are plenty of incentives for design-minded architects even without protection against copying of constructed buildings, and full copyright protection imposes significant costs, as the culture among design-minded architects embraces inspirational use of existing works.
But as Collins persuasively argues, the incentive/access debate, focused as it is on the justifications for full copyright protection, misses something important. In particular, discussion along the incentive/access dimension has difficulty explaining or justifying the particular form of pre-AWCPA protection. For while that law surely was “weak” as compared to current law (and therefore preferable to current law, from the perspective of minimalists) the defeasible nature of the rights was a unique design that reflected a different set of considerations—namely concerns about disclosure of information between architects and their clients (the “owners”).
Here is where Collins’s deep knowledge of the architectural design process really pays off. As he explains, project delivery is commonly spread over several phases. Architects’ creative value is concentrated in the earlier stages, with later stages consisting of more commoditized, even if time intensive, work. Yet the standard payment structure in the industry spreads payment to the architects out over the phases of construction, deferring the majority of that compensation until the later phases. And, crucially, architectural clients typically have the right to terminate their contracts with the architects for convenience at any time. The misalignment between the stages at which design-minded architects add the most creative value and the timing of their compensation, along with clients’ ability to terminate at any time, creates a potential dilemma. Architects who do the high-value initial design work are exposed to a risk that clients will take the design work and replace them with other architects who, while possibly not as skilled in design, can do the more commoditized, later-stage work at lower cost. Knowing of this risk, architects might be reluctant to share their work with clients at an early stage. This is a twist on Arrow’s information paradox.
Pre-AWCPA copyright solved this paradox by giving architects the right to prevent copying of their drawings into other drawings. Because constructing a building requires detailed construction drawings, which are derivative works of the earlier-stage schematic drawings, and because actually constructing a building nearly always requires many copies of the construction documents, it is practically impossible to bring a project to fruition without legitimate access to the drawings. Thus, prohibition on copying of architectural drawings into other drawings effectively tied a client to the architect, assuming the client wanted to complete the project. (P. 42–43 n.1.)1 Clients could always start over with a new set of original drawings, but doing so is much less attractive in later project phases because of the cost that will by then have been put into the project.
Full copyright protection could also solve this disclosure paradox, of course. But as Collins nicely demonstrates, the problem of disclosure is a different one from incentives, and the solution to the disclosure problem need not be the same. While conventional discussions of Arrow’s information paradox assume “that the intellectual property rights needed to resolve the information paradox and facility information exchange are the same rights that are needed to prevent free riding by strangers and alleviate a public goods problem,” in fact “the information paradox can only justify rights that last until the seller has received payment for the full value of the information.” (P. 39–40.) And there is much to be gained in recognizing the implications of these different theories, since defeasible rights are likely to be less socially costly. Indeed, the “hidden wisdom” of the defeasible nature of pre-AWCPA rights was that they were robust enough to solve the disclosure paradox, but limited enough to avoid the access problems that attend full copyright.
As he acknowledges, Collins’s case is a version of a commonly-told story of the efficiency of the common law. Pre-AWCPA copyright evolved uniquely, even as compared to other areas of copyright that would seem analogous, to fit the customary needs of design-minded architects. It is not clear that courts tailored these rights intentionally—in fact, the nature of pre-AWCPA rights seems best explained by a series of historical contingencies and a lack of political interest on the part of architects. But the question of courts’ intentionality is one I would be interested to see Collins address more directly.
In the end, the paper makes a strong case against one-size-fits all copyright. Determining how much protection, if any, should be accorded to particular types of works, and what form that protection should take, requires in-depth study of the particular context in which architects work and careful comparative institutional analysis.2
But Collins’s broader point is perhaps more important. Pre-AWCPA copyright suggests that, if the point of intellectual property rights is simply to overcome a disclosure paradox and facilitate information disclosure, then “something less than full-fledged intellectual property rights of the kind required to prevent free riding by strangers may be enough to fulfill that need.” (Collins, P. 17 n.1.) That is to say that one’s theory of copyright matters, not least because different theories imply different forms of protection.3 Too much legal scholarship assumes the opposite, reflexively treating different theories as substitute justifications for essentially static legal rules. Collins’s bigger contribution is thus a strong argument against one-size-fits-all theory.
- Architects supplemented these copyright rights through contract, by insisting in industry-standard contracts that the architectural drawings are “Instruments of Service” that are the property of the architect, not the client. This language treated the drawings as tangible property, and in the event of termination of service, the contracts allow the architects to demand return of all copies of the drawings.
- Cf. Dan L. Burk & Mark A. Lemley, The Patent Crisis and How Courts Can Solve It (2009); Michael W. Carroll, One Size Does Not Fit All: A Framework for Tailoring Intellectual Property Rights, 70 Ohio St. L.J. 1361 (2009).
- Cf. Stephen Yelderman, Coordination-Focused Patent Policy (Aug. 15, 2014) (making a similar point about patent policy—specifically that, contrary to most assumptions, coordination theories of patent law imply different outcomes across a range of patent policies, as compared to incentive-based justifications).