Abstract
AbstractFor all of the rhetoric about the central place of authors in the copyright scheme, our copyright laws in fact give them little power and less money. Intermediaries own the copyrights, and are able to structure licenses so as to maximise their own revenue while shrinking their pay-outs to authors. Copyright scholars have tended to treat this point superficially, because – as lawyers – we take for granted that copyrights are property; property rights are freely alienable; and the grantee of a property right stands in the shoes of the original holder. I compare the 1710 Statute of Anne, which created statutory copyrights and consolidated them in the hands of publishers and printers, with the 1887 Dawes Act, which served a crucial function in the American divestment of Indian land. I draw from the stories of the two laws the same moral: Constituting something as a freely alienable property right will almost always lead to results mirroring or exacerbating disparities in wealth and bargaining power. The legal dogma surrounding property rights makes it easy for us not to notice.
Highlights
If you follow copyright law, it can’t have escaped your attention that, in the US, the community of copyright law scholars has been deeply polarised for the past 25 years
Copyright scholars have tended to treat this point superficially, because – as lawyers – we take for granted that copyrights are property; property rights are freely alienable; and the grantee of a property right stands in the shoes of the original holder
I draw from the stories of the two laws the same moral: Constituting something as a freely alienable property right will almost always lead to results mirroring or exacerbating disparities in wealth and bargaining power
Summary
If you follow copyright law, it can’t have escaped your attention that, in the US, the community of copyright law scholars has been deeply polarised for the past 25 years. It’s gotten a little ugly.[1] We’ve called one another bad names.[2] Advocates for copyright owners have described scholars who defend the rights of users as hired guns paid by Google to write papers advancing its business interests.[3] Some of us have stopped reading the work of scholars perceived to be on the other side.[4]. I’ll try to offer an answer to the question why we’ve devoted so little ink to the paltry nature of authors’ real-world copyright benefits. This issue, after all, is deeply important on both a practical and theoretical level, so why don’t we write about it more? This issue, after all, is deeply important on both a practical and theoretical level, so why don’t we write about it more? At least part of the answer, I’ll suggest, lies in the ways that we, as lawyers, think about property rights
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