What’s Wrong with Copying?

by Abraham Drassinower

Copyright law, as conventionally understood, serves the public interest by regulating the production and dissemination of works of authorship, though it recognizes that the requirements of the public interest are in tension. Incentives for creation must be provided, but protections granted authors must not prevent the fruits of creativity and knowledge from spreading. Copyright law, therefore, should balance the needs of creators and users―or so the theory goes.

Challenging this widely accepted view, What’s Wrong with Copying? disentangles copyright theory from its focus on the economic value of an authored work as a commodity or piece of property. In his analysis of copyright doctrine, Abraham Drassinower frames an author’s work as a communicative act and asserts that copyright infringement is best understood as an unauthorized appropriation of another person’s speech. According to this interpretation, copyright doctrine does not guarantee an author’s absolute rights over a work but only such rights as are consistent with both the nature of the work as speech and with the structure of the dialogue in which it participates. The rights protecting works of authorship are confined to communicative uses of the work and to uses consistent with the communicative rights of others―for example, unauthorized reproduction of a work is lawful when responding to the work requires its reproduction.

What’s Wrong with Copying? offers a new way to interpret and criticize existing copyright law and to think about the relation between copyright and digital technology as well as broader juridical, social, and cultural concerns.

288 pages, Hardcover

First published April 9, 2015

Reviews

[Phoenix · Rating 4 out of 5]

Copy Rights

An ambitious extended legal brief covering a variety of cases and bases under which the right NOT to be copied in Canadian, American and British jurisprudence is explored. Drassinower illustrates that copyright is a collection of overlapping principles similar but not identical to its kissing cousins of patents and trademarks.

Principles under which copy rights may be pursued include “originality”, “by the sweat of one's brow” where the copier unfairly benefits from the hard work of another, and “compelled speech” (espoused by Justices Brandeis & Warren) wherein the copier denies the originator either the right to remain silent, the right of first publication, and the right to express themselves in a manner of their own choosing. (check that last one)

Key cases include Feist v. Rural Telephone Service (1); CCH v. Law Society of Upper Canada (2); Baker v. Selden (3); Post v. Pierson (4) As is often the case when reading legal briefs it is easy to get caught up in the drama of the arguments and lose track of who actually won in each case, a reminder that law is not always based on an absolute moral right or wrong but rather which opinion of several prevailed at the time. In that sense Drassinower is in error when he asks what's “wrong”. . Law is only partially grounded in morality as morals may conflict. Rather juris prudence, as the compound word suggests, is about finding an appropriate balance of interests, There may be and usually are multiple inflection points where a judicial decision could come to rest. The correct question is how current thinking on the copying and the law has evolved [and where might it go next?], and this is where the book is of most value

It's no easy summary. Chapter 5 is quite poor in that it assumes that the reader is familiar with the Statute of Anne, the first example in British Law of copyright, and the cases of Millar v. Taylor (6) which was overturned by Donaldson vs. Becket (1774). The footnotes are of no help and what we learn about the cases can only be gleaned bit by bit by the commentary. Notwithstanding that these are considered classical roots of copyright in English law, the notion that Google is one's friend the author should have summarized these cases thereby making the discussion self contained.

While casual readers will likely be off-put by the technical specificity of the language. Drassinower has created an eminently useful guided tour for legal specialists needing to argue principles of standard copyright and for those who need awareness of the application of copyright law in commercial settings or other domains. However the book does not delve into issues of the public domain or contractual modifications of copyright such as practiced by the creative commons or open source movements.

[Rt · Rating 5 out of 5]

Really thought-provoking book that proceeds from the thesis that copyright ought to be a true author’s right: a right to participate in a conversation, which entails a like right of others, thus creating its own inherent limits (specifically the idea/expression distinction and transformative fair use). Also, because copyright rights involve communication, non-uses—including database uses and private copying—are not infringements of the legitimate copyright rights. I was about half persuaded. He convincingly argues that the “balance” metaphor of copyright (balancing author and audience interests) doesn’t justify copyright because it doesn’t tell us what is to be balanced. It makes copyright’s lack of coverage for ideas and facts, as well as fair use, into empirical questions when they shouldn’t be; balancing certainly can’t tell you as a matter of first principle that copyright should protect expression and only expression, or why copyright and patent are different. A mousetrap may well involve creativity – just not the kind of creativity copyright protects.

He makes a good point about defending the public interest versus the public domain; instrumentalist accounts of copyright focus on the former, when we should defend the latter. In Drassinower’s view, only understanding copyright as dealing with communicative acts can explain copyright: copyright is not a property right, but a right “inhering in persons as speaking beings.” Because others need free access to ideas and transformative fair use, an author’s claim can’t extend to those—though Drassinower doesn’t fully convince me that he’s defended these needs (why is freedom to copy ideas always necessary to the next author?).

One quibble comes from his use of Borges’ “Pierre Menard, Author of the Quixote” to defend the principle that independent creation can’t be infringement, since Menard is definitely an author—but Menard was also definitely not an independent creator in the sense of not needing Cervantes as a but-for cause of his creation. I also thought his distinction between copyright and trademark was unpersuasive, since he defines trademark as the right to completely control the meaning of a mark as applied to a good or service, and a trademark is not and should not be that! We’re allowed to talk about a Mickey Mouse operation, or a Cadillac health plan.

As Drassinower recognizes, entailed in his view is that the derivative works right is illegitimate, which would be a big change—though he does allow for room for infringement via substantial similarity, at least in some cases. He also, in what I think is a concession that’s inconsistent with his theory but he thinks necessary for practical purposes, allows for the existence of a translation right. Of course translation also requires creative endeavor by the translator, but he argues that “[u]nlike fan fiction, which uses the work of another in one’s own, translation is not a speaking in one’s own words but a rendering of another’s words in another language. Unauthorized translation is therefore infringing.” I’m not sure I can go with him—why isn’t then a movie version a translation of a book into a different medium and therefore infringing, justifying at least part of the derivative works right? He recognizes translation as authorial but also infringing; that opens the possibility of other categories of authorial acts that are also infringing, and now we’re back to fighting over the scope of the derivative works right.

Drassinower is trenchant in his criticism of US parochialism, which dismisses rights-based accounts of copyright law out of hand. Low-protectionists worry that an author-centered account of copyright would give authors too much control, but not all authorial demands would be plausible in his account—respecting an author’s autonomy doesn’t require us to diminish the autonomy of others. Only republishing her words without also transforming them to be one’s own expression, whether through commentary or otherwise, ought to count as compelled speech (treating her like a puppet, working at the behest of others without her consent) that she can suppress.