We often call copyright a species of intellectual property, abbreviating it, "IP." This brief paper suggests that we consider copyright as another sort of IP: an intellectual privilege. Though copyright doubtless has some property-like attributes, it more closely resembles a special statutory benefit than it does a right, general in nature and grounded in common law, deserving the title of "property." To call copyright a "privilege" accurately reflects legal and popular usage, past and present. It moreover offers salutary policy results, protecting property's good name and rebalancing the public choice pressures that drive copyright policy. We face a choice between two ways of thinking about, and talking about, copyright: As an intellectual property that authors and their assigns own, or as an intellectual privilege that they merely hold. Perhaps no label can fully capture the unique and protean nature of copyright. Recognizing it as form of intellectual privilege would, however, help to keep copyright within its proper legal limits.
I encourage you to download a copy of the draft paper and offer me your thoughts. I'll present it at Syracuse University College of Law this coming Friday, October 26, at Creators vs. Consumers: The Rhetoric, Reality, and Reformation of Intellectual Property Law and Policy, a symposium hosted by the Syracuse Law Review and The Institute for the Study of the Judiciary, Politics, and the Media at Syracuse University.
The event promises some good, geeky fun. In addition to a keynote address by Professor Tim Wu, of Columbia Law School, the conference will offer four sessions, one each on trademarks, patents, copyrights, and new frontiers of IP. Each session will feature a presentation followed by commentary. I'm the sacrificial lamb for copyright. I'll certainly take the comments I get to heart, as I plan to eventually rework the paper into the first chapter of my book-in-progress, Intellectual Privilege: Copyright, Common Law, and the Common Good.
[Crossposted to Intellectual Privilege and The Technology Liberation Front.]