Courts and scholars today understand and discuss the institution of copyright in wholly instrumental terms. Indeed, given the forms of analysis that they routinely employ, one might be forgiven for thinking that copyright is nothing more than a comprehensive government-administered scheme for encouraging the production of creative expression and is therefore quite legitimately the subject matter of public law. While this instrumental focus may have the beneficial effect of limiting copyright’s unending expansion, it also serves as a source of distraction. It directs attention away from the reality that copyright is fundamentally a creation of the law and is thus endowed with a uniquely legal normativity that instrumental accounts find difficult to capture. In so doing, it also glosses over the rather crucial fact that copyright law’s basic structure is and indeed always has been that of private law.
In this Article, I argue that taking copyright’s legal architecture seriously reveals a matrix of core private law concepts and ideas that are in turn a rich and underappreciated source of normativity for the institution. In the process, I make three interrelated claims. First, copyright theories and analyses ought to pay greater attention to the analytical structure of copyright’s entitlement framework and the ways in which this structure seeks to operate in the real world. Discussions of copyright law would do well to appreciate that the institution’s exclusive rights framework functions almost entirely through its creation of an obligation not to copy original expression. Second, copyright can usefully be reconceptualized as revolving around the “wrong of copying,” which originates in the right-duty structure that copyright creates. Reorienting discussions along these lines allows for a more direct focus on why copyright treats copying as a wrong, what actions constitute the wrong, and which plural values can fruitfully coexist within its private law structure. Third, focusing on copyright’s internal logic need not come at the cost of its instrumentalism. To the contrary, such an approach entails mediating the institution’s instrumentalism through its private law structure on a nuanced, pragmatic basis.
The idea of legal normativity is traced back to the seminal work of Professor H.L.A. Hart, who argues that the law always operates by imposing “obligations” on individuals. Individuals, in turn, comply with these obligations not merely because of the consequences of compliance or noncompliance – that is, the rewards or sanctions that are likely to follow from obedience or disobedience – but because they have internalized the rule and accepted it, owing to its origins in the law. Hart terms this approach to understanding a legal rule the “internal point of view,” and contrasts it with other approaches that neglect this practical attitude of rule acceptance.
Viewing copyright from this internal point of view entails two important analytical moves. First, it entails trying to understand copyright in terms of its obligatory or duty-imposing directives, which are vested with independent normative significance. Commonly thought of entirely in terms of “rights” owing to its structural similarity to property law, copyright law is rarely, if ever, conceptualized as a duty-imposing system. When scholars do make mention of copyright’s duty in their analyses, they do so without crediting this duty with any independent functional significance. Ironically, though, absent the “duty not to copy” that copyright creates as an obligatory directive, copyright’s entire structure of exclusive rights becomes functionally vacuous. Second, an internal approach to copyright law entails accepting that copyright’s legal framework – as an obligatory system – speaks most directly to potential copiers rather than to creators. Reframing copyright in terms of the “wrong of copying” that its right-duty structure anticipates provides a more useful basis for tying it to the internal point of view.
It bears emphasizing that in attempting to reorient our understanding of copyright law to focus on the duty that it imposes on actors (that is, potential copiers) and on the way in which that duty renders the institution’s very structure of rights operational, my argument does not suggest that the idea of the “duty not to copy” needs to replace any and all discussion of “exclusive rights” in copyright law. I intend instead to suggest that while the two always go together, the systematic neglect of copyright’s “duties” in copyright jurisprudence and scholarship has over time skewed our understanding of copyright’s basic structure as an area of law endowed with an obligatory dimension – that is, where compliance is required and not merely optional. In the process, copyright’s very origins as a creation of the law, and as a branch of private law, have come to be neglected in discussions of the subject.
Part I focuses on copyright’s private law edifice to show that much of copyright’s analytical work is done through its creation and maintenance of a “duty not to copy,” which it directs at potential copiers, to create a “wrong of copying.” Part II unpacks the wrong of copying, shedding some light on its origins, examining the contours of the wrongdoing that it identifies, and showing how copyright’s concept of copying is a defeasible one that allows the institution to expand sequentially. Part III then examines how a theory of copyright law can countenance both obligations and incentives by allowing them to operate at different levels.