My previous two posts on the upcoming Nies Lecture (Thursday, April 16, at 4:30pm — it’s not too late to register!) attempted to sketch out where I think Prof. Smith is headed, based on the abstract and his previous work. In this post I want to reflect for a moment on the implications of viewing copyrights as a type of semicommons.
Copyright was born, in the eighteenth century, with a focus on who had the right to print, publish, and reprint works of authorship. That is, the concern was to exclusively reserve the manufacture of complete works — books, maps, and nautical charts — to the person who created them, or any downstream purchaser of those rights. Although the copyrighted work is intangible — it is the particular creative expression that is embodied within a book, map, or chart — for the first century or so of its existence that expression as a practical matter had a one-to-one correlation with physical objects. In that realm, it is easy to conceive of the property rights assigned by copyright, and the open access rights to the public domain, as dividing lines dividing up an imaginary space — this tract over here is the book Moll Flanders, which is owned by X; that tract over there is public domain, and thus can be used by anyone.
Over the course of the nineteenth century and into the early twentieth, that early, simple framework broke down as courts embraced the notion that the intangible object protected by copyright could be infringed in ways other than reprinting physical copies of the original. What if a later work appeared that reproduced, not an entire novel, but material scattered thoughout the book, or a single scene, or transformed the plot of the book into a silent film? What if it told a similar story with different names? Ever since at least 1841, courts using various doctrines have had to delve within works to determine what is protected — what is under the exclusive control of the copyright owner — and what is available to the public. And these distinctions, as Judge Learned Hand realized in 1931, overlap each other. Some uses of material will be permitted, and other uses of the very same material will not.
Nevertheless, the dominant mental model of copyright’s scope remains a spatial, object-oriented one. The unit of protected material in the statute is the “work of authorship,” and infringement claims are typically analyzed by starting from the position that a work is copyrightable in its entirety and then trimming away from it using various exceptions. Likewise for the public domain, which originated as a term for entire works that had fallen out of copyright, but more recently has been used as a term to capture all permissible uses of works. When copyright scholars set out to describe the public domain, they typically attempt to describe the material that is in it. But if the semicommons analogy is correct — and it has a lot to recommend it — then mapping the public domain in that fashion would be like mapping the common versus the private elements of an open field: it would produce exactly the same map. Sometimes the field is used in common, and sometimes it is privately managed.
This mismatch between mental image and rights might help explain some features of the debates over the scope of copyright and fair use. There is what has always seemed to me to be a puzzling debate over whether to call fair use a “right” or an “affirmative defense.” Procedurally it is an affirmative defense, but to borrow the late Sen. Arlen Specter’s phrase, it’s a “super-duper” affirmative defense. The status of fair use may reflect its employment not as a narrow exception to property rights, like an easement, but as a coextensive communal right to use, like early modern villagers putting two sheep on the open field. Fair use, on this view, is a right that is an affirmative defense; it’s a duck-rabbit.
And looking at expression as a semicommons might also explain the tenacity and the strength of dueling convictions that copyright is expanding and that fair use is expanding. (Motivated cognition is probably at work too, but it’s at work in everything.) If protected material and unprotected material are considered to be separate points on a plane, then the explanation for “expansion” has to be some sort of moving of the fence between the two, through cases or legislation or both, in a zero-sum game. But if copyright is a sort of semicommons, there’s no fence — not even a metaphorical one — between fair use and copyright. Instead, the issue is how to categorize various activities or uses of the “field,” and expansion could come about simply through the development of new uses. Indeed, it could very well be the case that both fair use and copyright are expanding. A spatial framework for thinking of copyright makes this view impossible, in the same way that the square in Flatland could not really understand what the sphere was.