Document Type

Article

Publication Title

Harvard Law Review Forum

Abstract

It is altogether appropriate in a symposium devoted to the revival of private law that Professor Shyamkrishna Balganesh should write a paper to explain how the law of copyright is in fact moored deeply in the private law. In one sense, his claim sounds a bit like a paradox, for the origin of any copyright rests solely on the statutory system that confers on the holder of a copyright the exclusive right to use, license or sell any copyrighted work. All the requirements that are needed to generate a copyright — that it be, for example, an original work fixed in a tangible medium — derive from statute. In this regard, the law of copyright differs sharply from the law that governs land and chattels, in which common law largely created the exclusive rights of use, and the limitations thereon, even if they are subject to statutory modification. The explanation as to why copyright falls under the rubric of private law comes in two parts. First, the definition of private law does not depend on the origin of the rights in question, but only on the parties to a particular dispute. Private law involves suits between two private individuals, neither of whom receives any privilege or advantage from the state. In this regard, private law differs sharply from the two most common forms of public law. The first involves situations in which the state imposes sanctions through the criminal law or in which it seeks to exercise the powers of taxation or eminent domain, which necessarily lodge only in public bodies or private individuals who are authorized to act on their behalf. The second part of the explanation considers situations in which the state seeks to defend itself — for example, by some notion of sovereign immunity, which it claims provides it an absolute or qualified immunity against suit for any form of government misconduct. This simple topology precludes creating as a structural matter any hard distinctions between the private law of land and the private law of copyright or, indeed, patents or any of the other forms of intellectual property. The same rough equivalence holds with the public law as it relates to copyright and other forms of intellectual property. These forms are subject to criminalization, taxation, condemnation, or even expropriation. In all cases, the task at hand is to articulate a general analysis to resolve two problems. The first is to explain the similarities and differences among the various fields. The second is to explain how the various forms of property can be subsumed in a single general theory that respects these similarities and differences among the various forms of property. In dealing with these issues, Balganesh is of two minds. On occasion, he speaks about the common elements between the various forms of property; other times, he stresses their differences. But what is missing in his account is a unified theory of property that links the various strands together. In this short response, I shall have time only to point out some of the gaps and the tension in Balganesh’s general approach. In Part I, I examine whether property rights can be addressed solely in instrumental terms or whether some independent moral substrate lies beneath those admitted consequentialist virtues, and I conclude that there is no such independent basis. In Part II, I ask whether it is possible to ignore the strict correlative nature of rights and duties in understanding how various systems of property rights work and conclude that it is not. In Part III, I address the role of defeasibility in fleshing out any complete system of obligations under the private law and again conclude that they operate in the same fashion in both domains. Finally, in Part IV, I examine briefly the systematic interconnections between free speech and copyright law on the one hand and ordinary property rights and patents on the other. I conclude that both copyright and patent law are justified deviations from a pure libertarian theory of property rights.

First Page

120

Volume

125

Publication Date

2012

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