Ius et Iustitium is happy to present this guest post by Jake Neu. Mr. Neu is a partner at Bradley Arant Boult Cummings LLP. This is the first part of a two-part series. Part II is available here. Mr. Neu argues in favor of the civil law (or droit d’auteur) understanding of copyright. A reply to this series, countering that the droit d’auteur (and copyright generally) is ill-founded on natural law and Thomistic grounds, will follow.
In my previous post on “The Common Good in Patent Law,” I stated that modern patent law had a single source, the Venetian Patent Statute of 1474. In that statute one finds all the principal characteristics of modern patent law present in various stages of maturity, and this conception eventually spread to all European countries and around the world. Therefore, patent law enjoys a very stable and common global understanding of its nature and purpose, even if the contours and scope of the law remain hotly debated.
The same cannot be said for copyright law, which has long struggled to balance two competing, ancient conceptions of what copyright law should be and do. Given the importance that copyright plays in technology, software, data management, and mass entertainment today, these differences have profound implications for how we organize rights and obligations under the law. Before considering how copyright may operate in support of the common good, we must first discuss these competing conceptions.
On the one hand is copyright,[1] a primarily economic right attempting to address an economic failure of the commons that will be most familiar to Anglo-Americans trained in common law. The Anglo-American system of copyright originates in the Statute of Anne in 1710. The Statute of Anne created a right for the editor or publisher to control the making of copies of a printed work. The reason is that once the original publisher undertook the expensive and time-consuming effort to typeset and print a work, it was much easier for others to copy and print the same work. To protect that investment and prevent a market failure, copyright gave publishers a monopoly for a limited time to make and distribute copies, recover damages, and obtain injunctive relief to prevent a flood of cheap copies of works they had borne the expense of preparing. Therefore, Anglo-American copyright was primarily geared toward protecting the public market in order to bring to the general public the fruits of an author’s work. From this arose the traditional requirements of notice and registration of the copyrighted work that even today remains a key feature of US copyright law. Even though these requirements have been considerably relaxed and US law now recognizes that copyright adheres to work upon its creation regardless of registration, the work must still be registered with the US Copyright Office before the owner can sue for infringement.
On the other hand is author’s right (droit d’auteur), a primarily moral right in the civil law recognized by our Continental friends. Author’s right does not arise from the need to correct an economic failure of the commons, but rather from the author’s inherent control over his own creative work. Author’s right originated in France in a series of privileges granted by the Crown, was expanded to all citizens in the French Revolution, and then exported to the rest of the Continent during and following the Napoleonic Wars. The basic impulse behind author’s right is perhaps still best expressed by the jurist Marion in the French 1568 legal case that recognized the author’s right for the French humanist Marc-Antoine Muret (Muretus): “The author of a book is its master and as such may dispose of it freely, or even hold it always in his private hand, as one’s slave.” The jurist added, “The reason is that men, by a common instinct towards each other, so recognize each other in particular as the lord of what he does, invents, and composes.”[2] In this view, the author has complete control over the work, including any decision to publish it or not, to control its presentation and integrity, to attribute himself as the true author, to withdraw from further publication, and to protect his honor and reputation as presented in it. The agreement to publish is not to solve an economic problem, but rather a grant of access by the author to the publisher for the purpose of distributing the work. Notably in France, even after a work’s proprietary rights (droits patrimoniaux) enter the public domain, these moral rights remain durably intact.
Marion’s description of author’s right as arising from the creator’s inherent right of disposal of his creation hearkens back to older concepts in the natural law. It is natural, says Marion, that a creator owns the right to dispose of his creation as he so chooses, akin to the dominum or absolute ownership of property in Roman and natural law. Consider two Roman law precedents. First, wild animals or abandoned articles may become owned through the industrious work of the new owner in capturing or finding them, thereby attaining ownership through occupatio. Second the irreversible creation of something new by A out of something old owned by B (such as wine from grapes) would be owned wholly by A, through specificatio. The creation of intellectual property is not perfectly mirrored by these Roman civil law forms, but they are the foundation that Marion builds upon. He takes these concepts of ownership by work or transformation, grafts onto them the broader natural law that a creator is superior to and has control over his creation, and arrives at the concept of author’s right. Marion’s real innovation in this regard is to recognize that the thing the author creates is not merely the copy of a book, but rather the concept of the written work itself apart from the original book in which it is written down (or “fixed,” as copyright lawyers say).
None of this appears in the classical Anglo-American concept of copyright. Instead, we see there a pragmatic response to a specific economic need—the need to ensure that private publishers would be duly compensated for their efforts to bring new creative works to the public. Therefore, in its original conception, copyright was limited only to exact copies or to redactions that took a significant portion of the original work and added nothing else. A limited copyright addressed the original economic need. Operating in the tradition of the common law, jurists believed the law should go no further unless and until new difficulties arrive. Furthermore, because it was limited to publication, such a public right needed public registration and notice, and so the US law in particular developed numerous formal requirements for recognizing and enforcing copyrights, requirements which are absent in jurisdictions using author’s right.
For our purposes of analyzing copyright law in view of the common good, it is interesting that the limited right of the Anglo-American copyright resulted in a more flexible understanding of the right, with much more freedom left to the public. One sees this, for example, in the concept of fair use (in the US) and fair dealing (in the UK and other common law jurisdictions). Both provide for the free use and copying by others in a broad range of situations. These permissions are more circumscribed or altogether proscribed under author’s right. Because author’s right is conceived as a moral imperative arising from the natural law, those countries that operate under a strong system of author’s right find it more difficult to craft exceptions or balance competing values. As is the case with modern human rights law, when an action or creation is conceived of as a right, it is more difficult to limit that right merely on economic grounds. For this reason, French moral rights long outlive the proprietary rights that govern the commercial exploitation of a work.
Therefore, in considering copyright law in view of the common good, a threshold question arises: Which of these two competing conceptions acts as the better framework for advancing the common good? The adaptability of copyright as a pragmatic right makes that framework easier to frame exceptions or permit alternative rights or uses in the name of the common good, but the current confusion in US fair use law acts as a cautionary tale. Pragmatism can descend into hopeless contradiction if taken too far. On the other hand, author’s right seems to more completely address both the economic and personal aspects of the created work, but in ways that may make it difficult to adapt and apply in the face of rapid technological advance.
Recent decades have seen an ongoing effort to merge the copyright and author’s right regimes, with mixed results. But more importantly, the rapid development of software, the Internet, and artificial intelligence have disrupted the stable expectations of both regimes. As one example, US fair use law—which was already a complex case-by-case determination based on numerous factors—has become even more confused in the Internet age, as Google and others try to push the bounds of fair use for their own ends. In my next post, I will propose that natural law principles such as those undergirding author’s right may help bring some order back to American copyright more generally, and fair use in particular. By recovering these natural law principles and marrying them with the flexibility of Anglo-American copyright, we may yet find a path forward.
Jake Neu
- One problem in discussing copyright law is the multiple meanings given to the word “copyright” by English speakers and the proliferating ancillary or sub-rights associated with the various regimes. I will maintain the English conventions here as this is a primarily English audience, but to address the confusion, I use unitalicized “copyright” or “copyright law” to refer to the general body of rights and laws surrounding the creation, ownership, and publication of creative works. Italicized “copyright” will refer to the economic rights (known in the French system as “proprietary rights” or droits patrimoniaux) of copying, distribution, preparation of derivative works, public performance or display, and similar commercial exploitation rights. Italicized “author’s right” (droit d’auteur) will refer to the moral rights of publication in first instance, attribution, integrity, withdrawal, and protection of reputation recognized in French law and derivative Continental systems. In US law, only certain visual works of art receive moral rights, and then only the rights to attribution and protection against distortion or mutilation prejudicial to the author. Additionally, though not the subject of this post, there are “neighboring rights,” which concern actors, broadcast rights, and similar ancillary rights and interests in the original work. ↑
- “L’auteur d’un livre en est du tout maître et comme tel peut en disposer librement, même le posséder toujours sous sa main privée ainsi qu’un esclave. … La raison en est que les hommes, les uns envers les autres, par un commun instinct, reconnaissent tant chacun d’eux en son particulier, être seigneur de ce qu’il fait, invente et compose.” This episode, and other interesting stories from French copyright law, may be found in Anne Latournerie, “Petite Histoire des Batailles du Droit d’Auteur,” Multitudes, 2001/2 no. 5, at pp. 37-62, available at https://www.cairn.info/revue-multitudes-2001-2-page-37.htm. The translation and any errors are my own. ↑
