Efficient Theft: Copyright & the Accession Insight

Abstract:     
Accession’s transformation from an obscure doctrine of conjoined chattels into a major theory of original ownership stands as one of the major breakthroughs in property theory of the past several years. The potential that accession theory holds for copyright remains largely unexplored. This Article seeks to remedy that gap in the literature in two steps. Part I explores the interplay between copyright and accession, and shows how accession can provide a more complete theory of original ownership in copyright law than competing theories can. This analysis also reveals novel insights about accession itself, including that accession covers much more of the domain of original ownership than previously believed, and that accession is not nearly as a regressive a theory as current scholarship assumes. The underappreciated radical aspects of accession frame Part II’s normative insights. Accession exposes deep ambivalence about the dominance of strong exclusive ownership rights within property doctrine. It suggests that optimal regulation not only permits, but requires, recognition of the extent to which unauthorized improvement can generate welfare gains. Curiously, though, acknowledgment of the social benefits of unauthorized improvement is more present in physical property law than copyright. Part II seeks to rectify this imbalance by leveraging chattel property’s approach to remedies in order to develop for copyright a novel remedial scheme - ex post compulsory licenses - that bears promise as a way to respect copyright owners’ rights while also creating space for optimal but unauthorized improvements. This Article concludes by situating its claims in the context of a growing body of literature that embraces the counterintuitive proposition that if law is to optimize the social productivity of property, it must attend carefully to the transgression, as well as the protection, of owners’ rights.

Number of Pages in PDF File: 50

Keywords: copyright, accession, property, intellectual property, efficient theft, efficient infringement

working papers series