Is Copyright Property?
San Diego Law Review, Vol. 42, p. 29, 2005
16 Pages Posted: 27 Jan 2004 Last revised: 2 Oct 2010
Date Written: October 1, 2010
This essay is based on commentary on Richard Epstein's article, Liberty vs. Property: Cracks in the Foundation, which was delivered at a 2003 conference. The essay suggests that the opponents of Epstein's position that copyright entitlements are derived from similar policy concerns as tangible property rights would reject his thesis at the conceptual level, maintaining that copyright is not property, especially in the context of digital media. By assuming their rallying cry that "copyright is policy, not property," this essay reveals that opponents of digital copyright are caught in a dilemma of their own making. In one sense, their claim that "copyright is policy, not property," is an uninformative truism about all legal entitlements, and in another sense, represents a fundamental misconception of the history and concept of copyright. The concept and historical development of copyright are more substantial than its representation today as merely a monopoly privilege issued to authors according to the government's utility calculus. The essay concludes with the observation that those who wish to see copyright eliminated or largely restricted in digital media are in fact driven by an impoverished concept of property that has dominated twentieth-century discourse on property generally. As a doctrine in transition - we are still in the midst of the digital revolution - copyright may be criticized for various fits and starts in its application to new areas, but the transition itself does not change copyright's status as a property entitlement.
Keywords: copyright, intellectual property, property, Internet, digital media, internet exceptionalism, right to exclude, monopoly, Lessig
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