92 Pages Posted: 9 Oct 2006 Last revised: 11 Nov 2007
This article describes how historical claims frequently made in arguments about the propertization of copyright are incomplete, focusing on three examples: that intellectual property is a much older phrase than current scholarship would lead one to believe; that, regardless, copyright has been understood as property (literary, artistic, etc.) since the 18th century; that infringement of all sorts have generally been called piracy for at least that long; and that appeals to Thomas Jefferson for weaker intellectual property rights are misplaced for multiple reasons. Because copyright has been viewed as property for hundreds of years, scholars who connect the increasing strength of copyright to the rise of the phrase intellectual property must make an argument completely absent from the literature - that intellectual property somehow hypnotizes in a way that literary property or plain old property did not. The paper then turns to analysis of the propertization claims themselves, showing the limits of these arguments and suggesting directions in which this scholarship might go. Finally, the paper proposes that the actual reason commentators are increasingly uncomfortable with copyright as property is the boundaries problem - the fuzziness of a copyright's borders in a world where many more people are creating and recreating expression as their vocations and avocations. As more and more of us emigrate to the realm of expression, the demands for both expressive property and expressive space put tremendous pressure on the copyright system.
Keywords: copyright, piracy, propertization
Suggested Citation: Suggested Citation
Hughes, Justin, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson. Southern California Law Review, Vol. 79, p. 993, 2006; Cardozo Legal Studies Research Paper No. 166. Available at SSRN: https://ssrn.com/abstract=934869
By Dan Burk
By Mark Lemley