The Hidden Wisdom of Architectural Copyright before the AWCPA: Defeasible Intellectual Property
56 Pages Posted: 5 Sep 2015 Last revised: 26 Feb 2017
Date Written: February 24, 2017
Before the Architectural Works Copyright Protection Act (AWCPA) of 1990, copyright protected architectural expression when embodied in drawings, but it did not protect the identical expression when embodied in constructed buildings. Copyright scholars have uniformly criticized this drawing/building distinction as formalist and economically misguided.
This Article reveals the hidden wisdom of pre-AWCPA copyright. The social benefit of pre-AWCPA copyright does not arise from reducing free riding by stranger architects and solving a public goods problem, as previous commentators have assumed. Its benefit derives from a transactional theory of intellectual property: it resolves the tenacious information paradoxes (i.e., disclosure dilemmas) that architects routinely face in dealings with their clients. Protection for drawings provides just enough rights to fully resolve these disclosure dilemmas, but, after they have been resolved, the lack of protection for constructed buildings radically reduces the costs of copyright’s access restrictions. Pre-AWCPA copyright is thus good policy to the extent that architects’ borrowing of creative expression from constructed buildings does not lead to a public goods problem, and there is no reason to believe that it did when such borrowing was permitted.
Generalizing its hidden wisdom, pre-AWCPA copyright exemplifies a conceptually novel type of copyright or patent: it is defeasible intellectual property. Defeasible intellectual property becomes void, or loses its economic value, upon the occurrence of a specified defeasance condition. If properly calibrated, it offers an alternative to traditional, full-term copyright or patent in fields in which public goods problems do not exist, yet disclosure dilemmas during commercialization justify some form of intellectual property.
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