Copyright law regulates expression. Through it, copyright holders win the privilege of invoking state power to control how and what we communicate. The Copyright Act limits our freedom to reproduce, rework, publicly distribute, publicly perform, or publicly display protected works of authorship. In many cases, even when the Act does not utterly prohibit an expression, the Copyright Office sets its price. Copyright flows top-down, out of Washington, D.C., in detailed and non-negotiable terms.
Common law operates on very different principles. It grows bottom up, out of the decisions of manifold state courts, without relying on federal lawmakers, statutes, or administrative agencies. It follows a few simple principles, leaving details to particular cases, customary practices, and mutual consent. Common law thus offers a deregulatory alternative to copyright.
Should we seize that opportunity? Simple logic suggests the appeal of winning the benefits of copyright policy (access to authors' works) without incurring its costs (lost opportunities to use those works). The Constitution goes further; it demands that we abandon copyright if we discover better policy options. If copyright is not necessary and proper to promote the general welfare and progress in the useful arts and sciences, after all, it loses its sole justification.
Common law alone evidently suffices to stimulate some original expressions, to some degree. Consider perfumes, recipes, clothes designs, furniture, car bodies, and uninhabited architectural structures—all of which exhibit great innovation despite falling outside the scope of copyright, patent, or any like statutory privilege. Perhaps common law could do still more if pressed into service more widely. Perhaps its fundamental principles of contract, property, and tort law could stimulate original expressive works even better than copyright can. Only by trying can we know.
We should thus promote policy experiments testing whether common law suffices to produce a socially optimal amount of expression. Copyright holders could help drive that discovery process by abandoning their statutory privileges. To encourage their participation, we should legislatively guarantee copyright holders that they will retain common law rights in works they dedicate to the public domain. That alone would probably not convince many copyright holders to abandon their statutory privileges, granted. Because it frees them from liability for opposing parties' attorneys' fees, however, abandonment already offers copyright holders a financial benefit. Clarifying that copyright abandonment leaves common law rights unaffected would strengthen that incentive.
Should we favor common law or a federal statute when it comes to controlling the creation, dissemination, and use of expressions? Commentators and courts largely agree on how to answer this question in First Amendment context. No such consensus exists in the context of copyright, however. Indeed, scarcely anyone even asks the question in those terms. We should not only ask it, but answer it: "favor common law over copyright."
[NB: The above text comes from part of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Specifically, it comes from the introduction to Part II, Chapter 6. You can find a complete draft of the full chapter, together with footnotes, here [PDF]. Also, I recently uploaded a draft of Chapter 5, Codifying Misuse. I welcome your comments on either or both.]
[Crossposted to Intellectual Privilege and The Technology Liberation Front.]