The Core of Copyright: Authors, Not Publishers

Wendy J. Gordon, Boston University School of Law

Previously published as Boston University School of Law, Public Law Research Paper No. 15-01 and Boston University School of Law, Law and Economics Research Paper No. 15-01.


Copyright largely consists of alienable rights and correlative duties — rights of exclusion given to individuals, and correlative duties not-to-copy imposed on the public. This Article argues that such right/duty pairs arise out of authorial creation. A focus on creation is not very popular at the moment; a growing number ofcommentators take the position that copyright is “about” making publishing and other dissemination industries more efficient and stronger. The Article encourages the legal community instead to return to thefocus that the Supreme Court articulated in Feist Publications, namely, that copyright must serve creative authorship rather than noncreative labor. The Article explores history, legal doctrine, and economics to investigate whether Congress may, for the purpose of aiding publishers and other disseminator industries, impose on the public a set of duties-not-to-copy others’ speech. In Eldred v. Ashcroft and Golan v. Holder, the Court upheld expansions of copyright even in regard to already-created works, relying in part on the possibility that the legislative expansions might incentivize noncreative dissemination. In each case, the contested statutes eliminated what would otherwise have been a public domain status for the works involved. One argument seemed to be that publishers or entertainment companies might repair and reissue more of their stockpiled films, books, or sound recordings, if they owned or could purchase copyright in them, as compared to how many films, etc., the companies would repair and reissue if the works were in the public domain. But there are far more old works in circulation than hidden in basement stockpiles. It may be plausible that statutorily restoring or extending copyrights might generate some additional dissemination of affected works. It is far less plausible, however, to imagine that the increase might ever be large enough to match the increased dissemination that would have resulted from the public having liberties to copy those works. Of even more importance is the issue of relevance: much of the new provisions’ supposed pro-dissemination impact should have been legally irrelevant to the Court. The Article contends that noncreative dissemination provides legitimate grounds for expanding copyright only when the dissemination assists authorial creativity. (So, for example, a new copyright provision might enhance disseminator profit in a manner that also raised the royalties that authors received. Constitutionally speaking, that provision’s only relevant benefits should lie in its ability, if any, to encourage authorial productivity.) An approach that gives more importance than this to dissemination could lead to the one form of copyright ruled out by the Framers, namely, a copyright that lasts forever. In the economic realm, the Article argues, inter alia, that the significance of Arrow’s information paradox for the economics of authorship (as distinguished from its significance in the economics of inventorship) lies not in encouraging disclosure and dissemination but in encouraging creation of new work; that much of the pro-publisher economic argument either boils down to serving authorship or lacks persuasive power; and that the speech-restrictive powers that copyright confers are far less suitable tools for aiding disseminators than would be more conventional forms of Congressional aid. On the doctrinal and historical side, the Article shows how the Court in Golan misunderstood the role that “publication” played in federal law prior to the 1976 Copyright Act; the Article presents a descriptive account of early common law copyright that offers a distinctive explanation for the role of publication in state law; and the Article examines the language of the Constitutional clause that empowers Congress to grant federal copyright in the first place. The Article also offers a new explanation of the so-called “distribution right” that empowers copyright owners to sue anyone who unknowingly sells unauthorized copies. All these phenomena are shown to support the view that creativity constitutes the core of federal copyright. Finally, the Article asks whether its creativity-centered viewpoint can be maintained without contradicting the doctrine (which I have long supported) that some acts of noncreative copying and dissemination legitimately deserve shelter under the “fair use” doctrine.