Property, Persona, and Publicity

Abstract

This article focuses on two interconnected problems posed by the growth of online creation. First, unlike analog creations, important digital creations such as emails are mediated and controlled by second parties. Thus although these creations are core intellectual property, they are not treated as such and service providers terminate or deny access to people's property all the time. In addition, when one dies, some service providers refuse to grant heirs access to this property. The uneven and unclear management of these creations means that historians and society in general will lose access to perhaps the greatest chronicling of human experience ever. Put simply, online creation and storage raise fundamental issues regarding the ownership of, dominion over, and preservation of digital property; yet the theoretical basis regarding these issues is unclear. Accordingly, this paper investigates and sets forth the theoretical foundations to explain why and how society should preserve this property.

Once the importance of preserving digital artifacts is understood, a familiar problem arises: what normative theory justifies the amount of control the creator or her heirs is given? As such, Part II examines the property, persona, and publicity arguments that the creation of artifacts raise. The paper shows that several theoretical views support the position that in life one has strong economic and non-economic claims for control over one's intangible creations. Yet, the paper finds that historical and literary theory in conjunction with recent economic arguments of Professors Brett Frischmann and Mark Lemley regarding positive externalities generated by access to ideas and information, militate in favor of limits on heirs' control over these creations. Furthermore, insofar as society provides the building blocks from which these creations arise, all the theories show that creations must at some point become part of the commons to enable others to generate new creations. Thus the paper argues against the growth of trademark or trademark-like author's rights which have no temporal limit and offer heirs extreme control over access to and use of an author's work and seeks to balance the interests of creators with society's interest in fostering later expression and creation of new works.

Keywords: copyright, trademark, right of publicity, intellectual property, persona, property, duration, spillover

JEL Classification: A13, H4, K11, K39