Core Copyright

This question seems so obvious and simple as to be undeserving of any scholarly attention. “Copyright” has a long history, tracing back to the early 18th century in Britain –- which includes the variants “copy right” and “copy-right” — so the term is not new. Yet this question is important to ask and answer for several reasons.

First, copyright no longer is a backwater discipline relegated to the inspection of nerdy specialists. Instead, it is now central to the everyday activities of most American citizens.

Second, many people –- lawyers and lay persons alike -– often conflate copyright and “intellectual property.”

Third, there are some important theoretical and political considerations that influence definitions of copyright. While these considerations are advanced issues we are more likely to address over on Copycense than here, they are important these days because of the rhetoric and framing that is being used to position copyright law and policy in one direction or another. I will summarize copyright law’s main theories in a future post, and we will devote extensive coverage to the theory of copyright in upcoming articles on Copycense.

Dictionary Definitions of Copyright

With this said, let us look at some definitions of copyright. In a prior post, I put forth an interim definition of copyright as “a legal system or program that governs the use of original, recorded works.” Compare my interim definition to the definitions of copyright from the following sources:

Black’s Law Dictionary: The right of literary property as recognized and sanctioned by positive law. An intangible, incorporeal right granted by statute to the author or originator of certain literary or artistic productions, whereby he is invested, for a specific period, with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them.

Barron’s Law Dictionary: The protection of the works of artists and authors giving them the exclusive right to publish their works or determine who may so publish.

Nolo: A bundle of exclusive rights granted to the author of a creative work such as book, movie, song, painting, photograph, design, computer software, or architecture. These rights include the right to make copies, authorize others to make copies, make derivative works, sell and market the work, and perform the work.

Oxford English Dictionary: The exclusive legal right, given to an originator or an assignee, to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same.

U.S. Copyright Office: [.pdf] Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.

When I read the five definitions above, a handful of issues occurs to me. First, all these definitions ostensibly focus on two issues: rights and protection of rights. Of course, copyright law has a sextet of rights, and another pair of rights that may be relevant when considering specific types of works.

Yet, I find it interesting that none of these definitions mentions the limitations on copyright rights that exist within the statute. If one considers that the limitations copyright law grants to the public are as important a part of the statute as the exclusive rights copyright law grants to authors, then it seems odd to me that basic definitions of copyright fail to mention limitations (or even compulsory licenses, for that matter).

Second, the definition in Black’s Law Dictionary puts forth a subtle, but important focus on property. This emphasis on property is important because courts and scholars regard Black’s as the definitive dictionary of American law (based upon legal citation frequency), and also because there has been an increasingly ferocious debate among legal scholars about whether copyrighted works qualify as (or retain characteristics similar to) property in the same way as we consider land or personal possessions to be property. (This debate is beyond Core Copyright’s scope, and something we will address separately on Copycense. The emphasis of Black’s on property, however, has important policy and legislative ramifications.

(And lest one think that the analogy of copyright with tangible property is one made only by copyright owners or their lobbyists, Lawrence Lessig refers to copyrighted works as property in his book Free Culture. He qualifies this by saying copyright is a special form of property, but he clearly refers to copyright as property.)

Third, the Black’s, OED, and Copyright Office definitions are quite technical and require some level of legal knowledge and training to understand fully. Neither the Barron’s or Nolo definitions suffer these problems, but, again, they retain what I consider a value-laden allusion to rights, protection of those rights, and the absence of any mention to limitations, or even the public domain.

Scholarly Definitions of Copyright

Several scholars have attempted to define copyright. Once again, I think it is instructive to survey these descriptions as well:

Paul Goldstein: In his book Copyright’s Highway, Goldstein defines copyright as one’s right to make copies of a given work (and to keep others from making copies of that work), and also as “the law of authorship.”

Niva Elkin-Koren: Elkin-Koren, an Israeli copyright scholar, defines copyright as “a property rule defined in legislative bodies of territorial states and applied by their enforcement systems” in a 2001 journal article.

William Patry: Patry, the author of the book Moral Panics and the Copyright Wars and the scholarly treatise Patry on Copyright, defines copyright as a social program that is a means to an end.

Jessica Litman: In a 1990 article entitled “The Public Domain,” the law professor defined copyright as “a legal scheme, prescribed in the Constitution and put in place by Congress, to encourage the enterprise of authorship.”

Again, it is interesting to note the emphasis on property or property protection, as they appear in Elkin-Koren’s and Goldstein’s definitions. Patry’s definition, while emphasizing the role government plays in granting copyright protection to authors, does not identify what means are being used and what ends are the objectives.

Ultimately, I believe Litman’s definition is the best because people can understand it on its face regardless with familiarity with the U.S. legal system. It also is the definition from either category that does the best job of eliminating or limiting personal and theoretical values, judgments, or assessments. This will be the operative definition we use going forward in Core Copyright.

(Editor’s Note: Portions of this writing have been taken from the author’s forthcoming study on copyright law and the frame of “piracy.”)

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