Special Issue: Thinking and Rethinking Intellectual Property: Volume 67

Copyright law has been oft-criticized for its unintended consequences. This paper retells three “tales of the unintended” concerning the 1976 Copyright Act, the present U.S. copyright statute. The first tale focuses on fair use, the second on statutory damages, and the third on formalities. From these three tales, the paper draws five different morals that provide insights into the ongoing process of copyright reform. These insights will enable policymakers and commentators to rethink the ongoing and future development of copyright law.

Artists operating under a studio model, such as Andy Warhol, have frequently been described as reducing their work to statements of authorship, indicated by the signature finally affixed to the work. By contrast, luxury goods manufacturers decry as inauthentic and counterfeit the handbags produced during off-shift hours using the same materials and craftsmanship as the authorized goods produced hours earlier. The distinction between authentic and inauthentic often turns on nothing more than a statement of authorship. Intellectual property law purports to value such statements of authenticity, but no statement has value unless it is accepted as valid by its audience, a determination that depends on shared notions of what authenticity means as well as a common understanding of what authenticity designates.

The concept of user rights in copyright law has clear affinities with the concept of copyright scope. The scope of an author’s entitlement over her work is lessened in proportion to the extent to which we assert that users, too, have rights. Yet user rights have profound implications not only with regard to copyright scope but also with regard to copyright subject matter. User rights implicate not only the scope of an author’s entitlement, but also the very nature of her work. Integrating user rights into copyright jurisprudence requires that a work of authorship be conceived not as an intangible commodity or metaphysical chattel, but as an act of speech performed by its author. The proposition that user rights are integral to copyright law makes sense only if we regard authors as speakers, and works of authorship as acts of communication.

This paper argues that the revolution in intellectual property rights is not forward-looking, but backward looking, and that it is not consonant with the purposes of the patent and copyright clause. It is animated by the theory of common law copyright, which deliberately reconceptualizes social relations in order to recast them as property, and which has been with us for centuries. This paper investigates the “mythology of common law copyright,” showing how this reconceptualization has worked both historically and in the present day to push the law in a direction that is ostensibly author-centered, but is actually focused on the rights of intermediaries.

This paper is designed to seek out the everyday narratives of copyright. To find these narratives, I analyze the comments section of websites where users can post their reactions to copyright-related stories. I argue that understanding how people who are not legal scholars frame the use of copyright as they discuss sharing, owning, and controlling the copy is a good place to begin to develop a sense for the everyday life of copyright law.