1Proponents of the free culture movement argue that contemporary, “over-zealous” copyright laws have an adverse affect on the freedoms of consumers and creators to make use of copyrighted materials. Lessig, McLeod, Vaidhyanathan, Demers, and Coombe, to name but a few, detail instances where creativity and consumer use have been hindered by copyright laws. The “intellectual land-grab” (Boyle, “Politics” 94), instigated by the increasing value of intangibles in the information age, has forced copyright owners to seek maximal protection for copyrighted materials. A propertarian approach seeks to imbue copyrighted materials with the same inalienable rights as real property, yet copyright is not a property right, because “the copyright owner … holds no ordinary chattel” (Dowling v. United States 473 US 207, 216 [1985]). A fundamental difference resides in the exclusivity of use: “If you eat my apple, then I cannot” but “if you “take” my idea, I still have it. If I tell you an idea, you have not deprived me of it. An unavoidable feature of intellectual property is that its consumption is non-rivalrous” (Lessig, Code 131). It is, as James Boyle notes, “different” to real property (Shamans 174). Vaidhyanathan observes, “copyright in the American tradition was not meant to be a “property right” as the public generally understands property. It was originally a narrow federal policy that granted a limited trade monopoly in exchange for universal use and access” (11). This paper explores the ways in which “property talk” has infiltrated copyright discourse and endangered the utility of the law in fostering free and diverse forms of creative expression. The possessiveness and exclusion that accompany “property talk” are difficult to reconcile with the utilitarian foundations of copyright. Transformative uses of copyrighted materials such as mashing, sampling and appropriative art are incompatible with a propertarian approach, subjecting freedom of creativity to arbitary licensing fees that often extend beyond the budget of creators (Collins). “Property talk” risks making transformative works an elitist form of creativity, available only to those with the financial resources necessary to meet the demands for licences.

 

2There is a wealth of decisions throughout American and English case law that sustain Vaidhyanathan’s argument (see for example, Donaldson v. Becket 17 Cobbett Parliamentary History, col. 953; Wheaton v. Peters 33 US 591 [1834]; Fox Film Corporation v. Doyal 286 US 123 [1932]; US v. Paramount Pictures 334 US 131 [1948]; Mazer v. Stein 347 US 201, 219 [1954]; Twentieth Century Music Corp. v. Aitken 422 U.S. 151 [1975]; Aronson v. Quick Point Pencil Co. 440 US 257 [1979]; Dowling v. United States 473 US 207 [1985]; Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539 [1985]; Luther R. Campbell a.k.a. Luke Skyywalker, et al. v. Acuff-Rose Music, Inc. 510 U.S 569 [1994].). As Lemley states, however, “Congress, the courts and commentators increasingly treat intellectual property as simply a species of real property rather than as a unique form of legal protection designed to deal with public goods problems” (1-2). Although section 106 of the Copyright Act 1976 grants exclusive rights, sections 107 to 112 provide freedoms beyond the control of the copyright owner, undermining the exclusivity of s.106. Australian law similarly grants exceptions to the exclusive rights granted in section 31. Exclusivity was a principal objective of the eighteenth century Stationers’ argument for a literary property right. Sir William Blackstone, largely responsible for many Anglo-American concepts concerning the construction of property law, defined property in absolutist terms as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the whole universe” (2). On the topic of reprints he staunchly argued an author “has clearly a right to dispose of that identical work as he pleases, and any attempt to take it from him, or vary the disposition he has made of it, is an invasion of his right of property” (405-6). Blackstonian copyright advanced an exclusive and perpetual property right. Blackstone’s interpretation of Lockean property theory argued for a copyright that extended beyond the author’s expression and encompassed the very “style” and “sentiments” held therein. (Tonson v. Collins [1760] 96 ER 189.) According to Locke,

 

3

 

every Man has a Property in his own Person . . . The Labour of his Body and the Work of his hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property. (287-8)

 

4Blackstone’s inventive interpretation of Locke “analogised ideas, thoughts, and opinions with tangible objects to which title may be taken by occupancy under English common law” (Travis 783). Locke’s labour theory, however, is not easily applied to intangibles because occupancy or use is non-rivalrous. The appropriate extent of an author’s proprietary right in a work led Locke himself to a philosophical impasse (Bowrey 324). Although Blackstonian copyright was suppressed by the House of Lords in the eighteenth century (Donaldson v. Becket [1774] 17 Cobbett Parliamentary History, col. 953) and by the Supreme Court sixty years later (Wheaton v. Peters 33 US 591 [1834]), it has never wholly vacated copyright discourse. “Property talk” is undesirable in copyright discourse because it implicates totalitarian notions such as exclusion and inalienable private rights of ownership with no room for freedom of creativity or to use copyrighted materials for non-piracy related purposes.

 

5The notion that intellectual property is a species of property akin with real property is circulated by media companies seeking greater control over copyrighted materials, but the extent to which “property talk” has been adopted by the courts and scholars is troubling. Lemley (3-5) and Bell speculate whether the term “intellectual property” carries any responsibility for the propertisation of intangibles. A survey of federal court decisions between 1943 and 2003 reveals an exponential increase in the usage of the term. As noted by Samuelson (398) and Cohen (379), within the spheres of industry, culture, law, and politics the word “property” implies a broader scope of rights than those associated with a grant of limited monopoly.

 

6Music United claims “unauthorized reproduction and distribution of copyrighted music is JUST AS ILLEGAL AS SHOPLIFTING A CD”. James Brown argues sampling from his records is tantamount to theft: “Anything they take off my record is mine . . . Can I take a button off your shirt and put it on mine? Can I take a toenail off your foot – is that all right with you?” (Miller 1). Equating unauthorised copying with theft seeks to socially demonise activities occurring outside of the permission culture currently being fostered by inventive interpretations of the law. Increasing propagation of copyright as the personal property of the creator and/or copyright owner is instrumental in efforts to secure further legislative or judicial protection:

 

7

 

Since 1909, courts and corporations have exploited public concern for rewarding established authors by steadily limiting the rights of readers, consumers, and emerging artists. All along, the author was deployed as a straw man in the debate. The unrewarded authorial genius was used as a rhetorical distraction that appealed to the American romantic individualism. (Vaidhyanathan 11)

 

8The “unrewarded authorial genius” was certainly tactically deployed in the eighteenth century in order to generate sympathy in pleas for further protection (Feather 71). Supporting the RIAA, artists including Britney Spears ask “Would you go into a CD store and steal a CD? It’s the same thing – people going into the computers and logging on and stealing our music”. The presence of a notable celebrity claiming file-sharing is equivalent to stealing their personal property is a more publicly acceptable spin on the major labels’ attempts to maintain a monopoly over music distribution.

 

9In 1997, Congress enacted the No Electronic Theft Act which extended copyright protection into the digital realm and introduced stricter penalties for electronic reproduction. The use of “theft” in the title clearly aligns the statute with a propertarian portrayal of intangibles. Most movie fans will have witnessed anti-piracy propaganda in the cinema and on DVDs. Analogies between stealing a bag and downloading movies blur fundamental distinctions in the rivalrous/non-rivalrous nature of tangibles and intangibles (Lessig Code, 131). Of critical significance is the infiltration of “property talk” into the courtrooms. In 1990 Judge Frank Easterbrook wrote:

 

10

 

Patents give a right to exclude, just as the law of trespass does with real property … Old rhetoric about intellectual property equating to monopoly seemed to have vanished, replaced by a recognition that a right to exclude in intellectual property is no different in principle from the right to exclude in physical property … Except in the rarest case, we should treat intellectual and physical property identically in the law – which is where the broader currents are taking us. (109, 112, 118)

 

11Although Easterbrook refers to patents, his endorsement of “property talk” is cause for concern given the similarity with which patents and copyrights have been historically treated (Ou 41). In Grand Upright v. Warner Bros. Judge Kevin Duffy commenced his judgment with the admonishment “Thou shalt not steal”. Similarly, in Jarvis v. A&M Recordsthe court stated “there can be no more brazen stealing of music than digital sampling”. This move towards a propertarian approach is misguided. It runs contrary to the utilitarian principles underpinning copyright ideology and marginalises freedoms protected by the fair use doctrine, hence Justice Blackman’s warning that “interference with copyright does not easily equate with” interference with real property (Dowling v. United States 473 US 207, 216 [1985]). The framing of copyright in terms of real property privileges private monopoly over, and to the detriment of, the public interest in free and diverse creativity as well as freedoms of personal use. It is paramount that when dealing with copyright cases, the courts remain aware that their decisions involve

 

12

 

not pure economic regulation, but regulation of expression, and what may count as rational where economic regulation is at issue is not necessarily rational where we focus on expression – in a Nation constitutionally dedicated to the free dissemination of speech, information, learning and culture. (Eldred v. Ashcroft 537 US 186 [2003] [J. Breyer dissenting]).

 

13Copyright is the prize in a contest of property vs. policy. As Justice Blackman observed, an

 

14

 

infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use. While one may colloquially link infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud. (Dowling v. United States 473 US 207, 217-218 [1985]).

 

15Copyright policy places a great deal of control and cultural determinism in the hands of the creative industries. Without balance, oppressive monopolies form on the back of rights granted for the welfare of society in general. If a society wants to be independent and rich in diverse forms of cultural production and free expression, then the courts cannot continue to apply the law from within a propertarian paradigm. The question of whether culture should be determined by control or freedom in the interests of a free society is one that rapidly requires close attention – “it’s no longer a philosophical question but a practical one”.

 

References

 

·Bayat, Asef. “Un-Civil Society: The Politics of the ‘Informal People.’” Third World Quarterly 18.1 (1997): 53-72.

 

·Bell, T. W. “Author’s Welfare: Copyright as a Statutory Mechanism for Redistributing Rights.” Brooklyn Law Review 69 (2003): 229.

 

·Blackstone, W. Commentaries on the Laws of England: Volume II. New York: Garland Publishing, 1978. (Reprint of 1783 edition.)

 

·Boyle, J. Shamans, Software, and Spleens: Law and the Construction of the Information Society. Cambridge: Harvard UP, 1996.

 

·Boyle, J. “A Politics of Intellectual Property: Environmentalism for the Net?” Duke Law Journal 47 (1997): 87.

 

·Bowrey, K. “Who’s Writing Copyright’s History?” European Intellectual Property Review 18.6 (1996): 322.

 

·Cohen, J. “Overcoming Property: Does Copyright Trump Privacy?” University of Illinois Journal of Law, Technology & Policy 375 (2002).

 

·Collins, S. “Good Copy, Bad Copy.” (2005) M/C Journal 8.3 (2006). <http://journal.media-culture.org.au/0507/02-collins.php>.

 

·Coombe, R. The Cultural Life of Intellectual Properties. Durham: Duke University Press, 1998.

 

·Demers, J. Steal This Music. Athens, Georgia: U of Georgia P, 2006.

 

·Easterbrook, F. H. “Intellectual Property Is Still Property.” (1990) Harvard Journal of Law & Public Policy 13 (1990): 108.

 

·Feather, J. Publishing, Piracy and Politics: An Historical Study of Copyright in Britain. London: Mansell, 1994.

 

·Lemley, M. “Property, Intellectual Property, and Free Riding.” Texas Law Review 83 (2005): 1031.

 

·Lessig, L. Code and Other Laws of Cyberspace. New York: Basic Books, 1999.

 

·Lessing, L. The Future of Ideas. New York: Random House, 2001.

 

·Lessig, L. Free Culture. New York: The Penguin Press, 2004.

 

·Locke, J. Two Treatises of Government. Ed. Peter Laslett. Cambridge, New York, Melbourne: Cambridge University Press, 1988.

 

·McLeod, K. “How Copyright Law Changed Hip Hop: An Interview with Public Enemy’s Chuck D and Hank Shocklee.” Stay Free (2002). 14 June 2006 <http://www.stayfreemagazine.org/archives/20/public_enemy.html>.

 

·McLeod, K. “Confessions of an Intellectual (Property): Danger Mouse, Mickey Mouse, Sonny Bono, and My Long and Winding Path as a Copyright Activist-Academic.” Popular Music & Society 28 (2005): 79.

 

·McLeod, K. Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. United States: Doubleday Books, 2005.

 

·Miller, M.W. “Creativity Furor: High-Tech Alteration of Sights and Sounds Divides the Art World.” Wall Street Journal (1987): 1.

 

·Ou, T. “From Wheaton v. Peters to Eldred v. Reno: An Originalist Interpretation of the Copyright Clause.” Berkman Center for Internet & Society (2000). 14 June 2006 <http://cyber.law.harvard.edu/openlaw/eldredvashcroft/cyber/OuEldred.pdf>.

 

·Samuelson, P. “Information as Property: Do Ruckelshaus and Carpenter Signal a Changing Direction in Intellectual Property Law?” Catholic University Law Review 38 (1989): 365.

 

·Travis, H. “Pirates of the Information Infrastructure: Blackstonian Copyright and the First Amendment.” Berkeley Technology Law Journal 15 (2000): 777.

 

·Vaidhyanathan, S. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: New York UP, 2003.

 

Citation reference for this article

 

MLA Style

 

·Collins, Steve. "‘Property Talk’ and the Revival of Blackstonian Copyright." M/C Journal 9.4 (2006). <http://journal.media-culture.org.au/0609/5-collins.php>.

 

APA Style

 

·Collins, S. (Sep. 2006) "‘Property Talk’ and the Revival of Blackstonian Copyright," M/C Journal, 9(4). Retrieved from <http://journal.media-culture.org.au/0609/5-collins.php>.

 

 

Unit reading 7

 

http://arpjournal.com/waveform-pirates-sampling-piracy-and-musical-creativity/

 

 

 

Unit reading8

 

https://ebookcentral-proquest-com.simsrad.net.ocs.mq.edu.au/lib/mqu/reader.action?docID=3038824&ppg=126&tm=1499671868177

 

 

 

unit reading 11

 

https://www.choice.com.au/shopping/consumer-rights-and-advice/your-rights/articles/tpp-secretly-trading-away-your-rights