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For all of the rhetoric about the central place of authors in the copyright scheme, our copyright laws in fact give them little power and less money. Intermediaries own the copyrights, and are able to structure licenses so as to maximise their own revenue while shrinking their pay-outs to authors. Copyright scholars have tended to treat this point superficially, because – as lawyers – we take for granted that copyrights are property; property rights are freely alienable; and the grantee of a property right stands in the shoes of the original holder. I compare the 1710 Statute of Anne, which created statutory copyrights and consolidated them in the hands of publishers and printers, with the 1887 Dawes Act, which served a crucial function in the American divestment of Indian land. I draw from the stories of the two laws the same moral: Constituting something as a freely alienable property right will almost always lead to results mirroring or exacerbating disparities in wealth and bargaining power. The legal dogma surrounding property rights makes it easy for us not to notice.
ABSTRACT. For all of the rhetoric about the central place of authors in the
copyright scheme, our copyright laws in fact give them little power and less
money. Intermediaries own the copyrights, and are able to structure
licenses so as to maximise their own revenue while shrinking their pay-outs
to authors. Copyright scholars have tended to treat this point supercially,
because as lawyers we take for granted that copyrights are property;
property rights are freely alienable; and the grantee of a property right
stands in the shoes of the original holder. I compare the 1710 Statute of
Anne, which created statutory copyrights and consolidated them in the
hands of publishers and printers, with the 1887 Dawes Act, which served
a crucial function in the American divestment of Indian land. I draw
from the stories of the two laws the same moral: Constituting something
as a freely alienable property right will almost always lead to results mir-
roring or exacerbating disparities in wealth and bargaining power. The
legal dogma surrounding property rights makes it easy for us not to notice.
KEYWORDS:Copyright, Property, AuthorsRights, alienability, DawesAct.
If you follow copyright law, it cant have escaped your attention that, in the
US, the community of copyright law scholars has been deeply polarised
for the past 25 years. Some of us see ourselves as advocates for the
* John F. Nickoll Professor of Law and Professor of Information, University of Michigan. Address for
Correspondence: University of Michigan Law School, 625 S. State St., Ann Arbor, MI 48109, USA.
Email: This essay is adapted from the 13th Annual University of Cambridge
Centre for Intellectual Property and Information Law International Intellectual Property Lecture, deliv-
ered at Emmanuel College on 13 March 2018. Im grateful to Jon Weinberg, Rebecca Giblin, Lionel
Bentley, Gautam Hans, Pam Samuelson, Kirsten Carlson and Laura Harlow for their extremely helpful
comments and suggestions. I rst learned about the Dawes Act from Judge Betty Binns Fletcher, when
she was working on her en banc opinion in Blackfeet Tribe of Indians v State of Montana, 729 F.2d
1192 (9th Cir. 1984), ad 471 U.S. 759 (1985). I was lucky to clerk for Judge Fletcher that year,
and her continuing encouragement and support was immensely helpful in my career as a legal scholar.
Judge Fletcher died in 2012 at the age of 89 an active senior judge who was still carrying a full case
load. According to the New York Times, she presided over a 9th Circuit hearing a week before her death.
Douglas Martin, Betty Binns Fletcher Dies at 89; Liberal Stalwart on the Bench,New York Times,
24 October 2012, available at <
Cambridge Law Journal, Page 1 of 23 © Cambridge Law Journal and Contributors 2018. This is an Open Access article,
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undervalued interests of readers and other users; others argue that we need
to increase the copyright protection we give to authors. Its gotten a little
Weve called one another bad names.
Advocates for copyright own-
ers have described scholars who defend the rights of users as hired guns
paid by Google to write papers advancing its business interests.
of us have stopped reading the work of scholars perceived to be on the
other side.
I believe (or at least I hope) that that whole sorry era is almost over, or
will be over as soon as we forgive one another for all the nasty name-
calling. As concrete reform proposals have emerged from the muck, it
has become apparent that what was billed as a conict between authors
and users was never about that at all. Instead, whats been going on is a
ght to the death among intermediaries. The highly publicised record
label lawsuits against individual users of peer-to-peer le-sharing applica-
turn out to have been a feint in a ght to hold Internet service pro-
viders liable for the activity of their subscribers.
Bitter complaints about
online consumer piracy
were largely a prelude to eorts by major
See e.g. T. Reilly, Copyright and a Synergistic Society(2017) 18 Minnesota Journal of Law, Science
& Technology 575, at 591609 (analysing scholarship arguing for limits on copyright and attributing
the authorsviews to copyright envy).
See e.g. H. Hansen, D.O. Carson, E. Moglen, W. Seltzer and C. Sims, Mickey Mice? Potential
Ramications of Eldred v. Ashcroft(2003) 13 Fordham Intell.Prop.Media & Ent.L.J 771, at 787
(the anti-copyright professors); H. Horbaczewski, No Silver Lining for the Emperors New
Clothes: Golan and the Traditional Contours of Copyright(2012) 59 J. Copyright Socy U.S.A.
865, at 865 (scholars that viewed the copyright law as a constitutional abomination); I.F.
Koenigsberg, The Fifth Annual Christopher Meyer Memorial Lecture: Humpty Dumpty in
Copyright Land(2004) 51 J. Copyright Socy U.S.A. 677, at 680 (enemies of copyright); M.A.
Lemley, Faith-Based Intellectual Property(2015) 62 UCLA Law Review 1328, at 1343 (the IP faith-
ful); Reilly, Copyright and a Synergistic Society, p. 625 (anti-author proponents); ibid., at p. 626
(if one reads professorial accounts such as these closely, one can also detect the perdious underlying
presence of copyright envy’”); P. Samuelson, The Copyright Grab,WIRED, 1 January 1996, avail-
able at <> (copyright maximalists); P. Schwartz and W.
M. Treanor, Essay, Eldred and Lochner: Copyright Term Extension and Intellectual Property as
Constitutional Property(2003) 112 Yale L.J. 2331, at 2331 (the IP Restrictors). Cf. K. McLeod,
Freedom of Expression (New York 2005), 65 (referring to copyright bullies as overzealous copyright
See B. Mullins and J. Nickas, Inside Googles Academic Inuence Campaign,Wall Street Journal,
14 July 2017, available at <
inuence-campaign-1499785286>; A. Rogers, Googles Academic Inuence Campaign: Its
Complicated,WIRED, 14 July 2017, available at <
See J. Litman, War & Peace: The 34th Annual Donald C Brace Lecture(2006) 53 J. Copyright Socy
U.S.A. 1; J. Litman, The Politics of Intellectual Property(2009) 27 Cardozo Arts & Ent.L.J. 313.
See e.g. Capitol Records v Thomas-Rasset, 692 F.3d 899 (8th Cir. 2012); Sony BMG Music
Entertainment v Tenenbaum, 660 F.3d 487 (1st Cir. 2011).
E.g. BMG Rights Management v Cox Communications, 881 F.3d 293 (4th Cir. 2018); EMI Christian
Music v MP3Tunes, 844 F.3d 79 (2d Cir. 2016). See C. Doctorow, Information Doesnt Want to Be
Free: Laws for the Internet Age (San Francisco 2014), 8089.
See e.g. Privacy and Piracy: The Paradox of Illegal File Sharing on Peer-to-Peer Networks and the
Impact of Technology on the Entertainment Industry, Hearing Before the Permanent Subcommittee
on Investigations of the Senate Committee on Government Aairs, 108th Congress (30 September
2003), 1920 (testimony of L.L. Cool, recording artist); Promoting Investment and Protecting
Commerce Online: Legitimate Sites v. Para-sites, Hearing Before the Subcommittee On Intellectual
Property of the House Judiciary Committee, 112th Congress (14 March 2011), 6162 (testimony of
Frederick Huntsberry, Paramount Pictures).
2 [2018]The Cambridge Law Journal
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copyright owners to narrow the safe harbours for online services.
intermediaries (by which I mean publishers, record labels, and movie stu-
dios) are ghting with new-fangled intermediaries (that is, online service
providers, platforms, and digital delivery businesses); what they are really
ghting about is who gets to eat the biggest piece of pie.
Copyright scholars can safely leave them to work it out without our help.
If the core question in that dispute is whether the law ought to favour pub-
lishers over platforms or vice versa, the answer is unlikely to signicantly
change the copyright ecosystem. Neither side has much of a claim to the
moral high ground.
The players on both sides are large, well-nanced
businesses with lots of lawyers in harness, so they dont particularly
need the assistance of legal scholarship. That debate is less compelling
from a theoretical or policy perspective than many other problems the copy-
right system faces. If the distribution of goodies among old-fangled and
new-fangled intermediaries wont have much impact on decisions sur-
rounding the balance the law should strike among writers and readers,
many scholars will lose interest in this particular conict. So, after we
get our feet extracted from all the mud weve thrown at each other, I expect
that the community of copyright scholars will move on to more intriguing
In this essay, I hope to do two things. First, Id like to focus attention on
an important issue that should have been central to our prior debates, but
somehow wasnt: For all of the rhetoric about the central place of authors
in the copyright scheme, our copyright laws in fact give them little power
and less money. If a legal regime purportedly designed for the benetof
authors systematically short-changes them, why does that happen and
what options might we have to respond? Copyright scholars mention this
problem often,
but have only rarely given it sustained attention.
See e.g. United States Copyright Oce: Section 512 Public Roundtable, 2 May 2016, available at
See e.g. R. Levine, Free Ride: How the Internet is Destroying the Culture Business and How the
Culture Business Can Fight Back (London 2011); J. Taplin, Move Fast and Break Things: How
Facebook, Google, and Amazon Cornered Culture and Undermined Democracy (New York 2017);
G. Pessach, Deconstructing Disintermediation: A Skeptical Copyright Perspective(2013) 31
Cardozo Arts & Ent.L.J. 833; M. Rasenberger and C. Pepe, Copyright Enforcement and Online File
Hosting Services: Have Courts Struck the Proper Balance(2012) 59 J. Copyright Socy U.S.A.
627. Compare S.E. Siwek, Copyright Industries in the US Economy: 2016 Report (December 2016),
available at <>, with Computer and
Communications Industry Association, Fair Use Industries in the U.S. Economy: Economic
Contributions of Industries Relying on Fair Use (2017), available at <
tent/uploads/2017/06/Fair-Use-in-the-U.S.-Economy-2017.pdf>; US Copyright Oce, Section 512
Study (2017), available at <> (public comments and tran-
scripts of public roundtables).
See J.C. Ginsburg, The Place of the Author in Copyrightin R.L. Okediji (ed.), Copyright Law in an
Age of Exceptions and Limitations (New York 2017), 60, 6668.
See e.g. W. Patry, Moral Panics and the Copyright Wars (Oxford 2009), 11719; D. Gervais, User-
Generated Content and Music File-Sharing: A Look at Some of the More Interesting Aspects of Bill
C-32in M. Geist (ed.), From Radical Extremismto Balanced Copyright: Canadian Copyright
And The Digital Agenda (Toronto 2010 ), 447, 450; R. Giblin, Reimagining Copyrights Duration
C.L.J. 3What We Dont See When We See Copyright as Property
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Second, Ill try to oer an answer to the question why weve devoted so lit-
tle ink to the paltry nature of authorsreal-world copyright benets. This
issue, after all, is deeply important on both a practical and theoretical
level, so why dont we write about it more? At least part of the answer,
Ill suggest, lies in the ways that we, as lawyers, think about property rights.
Let me acknowledge my priors. Twenty-rst-century copyright law is a
complex system with a bunch of interlocking and sometimes inconsistent
purposes, but I believe that the most important of those purposes are
these: rst, copyright law should encourage authors to create and widely
disseminate works of authorship; second, it should give them meaningful
opportunities to earn money from doing so; and, third, copyright law should
encourage readers, listeners, viewers, and other users to encounter, enjoy
and learn from those works of authorship.
There are other purposes,
but theyre subsidiary. To hijack a turn of phrase popularised by
Amazon.coms vice president Russ Grandinetti, the only essential players
in the copyright system are the author and the audience.
Of course, the copyright system needs intermediaries to convey the
works of authorship to their audiences and to channel the revenues
owing from the enjoyment of those works back to authors, but we can,
and I think should, be agnostic as to whether the law should favour any
of the competing intermediaries over the others. The most important con-
sideration is how well they accomplish their tasks of disseminating works
to audiences and paying money to authors.
So, lets look at how theyre doing at those tasks. How well is the current
global copyright system working out for authors and for readers? Ive spent
much of my career arguing that the copyright interests of readers and other
consumers are receiving too little attention.
The problems the copyright
in R. Giblin and K. Weatherall (eds.), What If We Could Reimagine Copyright? (2017) 177, 19396;
Ginsburg, The Place of the Author in Copyright; P.B. Hugenholtz, The Great Copyright Robbery:
Rights Allocation in a Digital Environment(2000), available at <
load/thegreatcopyrightrobbery.pdf>; M. Van Houweling, Authors vs Owners(2016) 54 Hous.L.R.
371; M. Van Houweling, Distributive Values in Copyright(2004) 83 Tex.L.Rev. 1535.
J. Litman, Real Copyright Reform(2010) 96 Iowa L.Rev. 1. See also e.g. Doctorow, Information
Doesnt Want to Be Free, pp. 15354.
See D. Streateld, Amazon Signs Up Authors, Writing Publishers Out of Deal,New York Times,17
October 2011, p. A1 (quoting Grandinetti as having said: The only really necessary people in the pub-
lishing process now are the writer and reader).
Many intermediaries, whether they are book publishers, online marketplaces or social media platforms,
reasonably view their eorts at market analysis, strategy and design to involve great creativity.
Comparable creativity is, of course, often required to sell products, like wheelbarrows or hot sauce,
that are not works of authorship. The fact that intermediaries make creative and valuable contributions
to the copyright ecosystem doesnt, without more, make them its indispensable beneciaries.
See e.g. J. Litman, Copyright Noncompliance (Or Why we CantJust Say Yesto Licensing)(1997)
29 N.Y.U. Journal of International Law & Policy 237; J. Litman, The Exclusive Right to Read(1994)
13 Cardozo Arts & Ent.L.J. 29; J. Litman, Lawful Personal Use(2007) 85 Tex.L.Rev. 1871.
4 [2018]The Cambridge Law Journal
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law poses for readers havent evaporated. For one thing, at least in the US,
readers are paying for access to the works they encounter by giving up mas-
sive chunks of personal privacy.
US policymakers are beginning to appre-
ciate the risks of that approach, but it may already be too late to mend them.
For another, many copyright owners have succeeded, at least so far, in their
eorts to nullify the legal rights that the copyright law gives to users, by
purporting to bind consumers to overreaching end user license agree-
Im concerned that that will end up severely undermining the
copyright system in the long term. Still, even with those problems, to the
extent that one goal of copyright is to give members of the public many
opportunities to enjoy a large variety of dierent works, in dierent formats
and at dierent price points, the current system is fabulously successful.
The situation for authors, on the other hand, is more depressing. The
copyright system, in truth, has never been very good at either giving
authors their choice of myriad channels for distributing their works to the
public, or enabling them to earn meaningful amounts of money from
doing so.
If an authors goals are to communicate her works to their
best audience and to earn an income from doing so, her choices end up
being narrowly limited. Even if she succeeds in disseminating her work
through the most suitable channel, she needs to accept that the intermediary
who operates that channel will likely both control the distribution of her
works and keep most of the money those works earn.
In the eighteenth, nineteenth and twentieth centuries, this bargain prob-
ably seemed pretty reasonable. Paper was expensive.
Mass distribution
required paper, along with printing presses, bookstores, warehouses, trucks,
movie cameras and movie theatres, broadcast towers and communications
satellites required, in other words, a signicant capital investment.
made sense in that context to expect that as the revenues from works of
authorship owed from users to authors, most of the money would be
diverted along the way to pay for expensive reproduction and distribution
See e.g. J.M. Newman, The Myth of Free(2018) 86 G.W. Law Rev. 513, at 55155; G.A. Fowler,
Your Data Is Way More Exposed than You Think,Wall Street Journal, 24 May 2017, available at
S. Schechner and N. Kostove, Google and Facebook Likely to Benet from Europes Privacy
Crackdown,Wall Street Journal, 23 April 2017, available at <
See A. Perzanowski and J. Schultz, The End of Ownership (Cambridge, MA 2016), 15101; M.J.
Radin, Boilerplate (Princeton 2013), 3351, 16876; see e.g. L. Hyde, Common as Air: Revolution,
Art, and Ownership (New York 2010), 6668.
See e.g. Doctorow, Information Doesnt Want to Be Free, pp. xxiixxv.
See Litman, Real Copyright Reform, pp. 812.
See M.A. Carroll, Whose Music Is it Anyway? How We Came to View Musical Expression as a Form
of Property(2004) 72 U.Cin.L.Rev. 1405, at 1471.
See e.g. J. Litman, Sharing and Stealing(2004) 26 Hastings Communication & Entertainment Law
Journal 1, at 2.
C.L.J. 5What We Dont See When We See Copyright as Property
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In the twenty-rst century, that explanation doesnt seem so reasonable.
At least some popular reproduction and distribution alternatives are much
less expensive than the older sorts.
Digital reproduction, digital down-
loads and online streaming can be downright cheap the fact that anyone
can aord to do it is said to be a primary driver of increasing consumer pir-
By all accounts, moreover, the money attributable to the distribution
and enjoyment of works of authorship is at an all-time high.
Yet creators
report that they are being paid much less than they used to be paid.
Some of the explanation for that might relate to the winner-take-all struc-
ture of many of the copyright intensive industries. J.K. Rowling,
Beyoncé Knowles,
George Lucas
and Lin Manual Miranda
have earned a bunch of money from their works of authorship. The majority
of creators, in contrast, regularly face the choice of living perilously close to
See e.g. Hyde, Common as Air, pp. 6465; M.A. Lemley, IP in a World Without Scarcity(2015) 90
N.Y.U.L.Rev. 460, at 48294.
See e.g. O. Kerr, A Lukewarm Defense of the Digital Millennium Copyright Actin A. Thierer and C.
W. Crews (eds.), CopyFights: The Future of Intellectual Property in the Information Age (Washington
2002), 163, 16567; F. Von Lohmann, Measuring the Digital Millennium Copyright Act Against the
Darknet: Implications for the Regulation of Technological Protection Measures(2004) 24 Loy.L.A.
Ent.L.Rev. 635, at 63843.
See e.g. J.P. Friedlander, RIAA Year-End Music Industry Revenue Report, 22 March 2018, available
at <>;
Siwek, Copyright Industries in the US Economy; A. Szamosszegi and M.A. McCleary, Fair Use
in the US Economy(2017), available at <
Use-in-the-U.S.-Economy-2017.pdf>. Reports focusing on particular income streams earned by some
legacy intermediaries dont count all of the revenue that new-fangled intermediaries are collecting as
a result of the online dissemination of works of authorship. See e.g. Statista, Dossier: Film Industry
in the U.S.(2018), available at <
states-statista-dossier/>. That money is of course part of the total that should be available for author
compensation. Moreover, those industry sector-specic reports indicate that legacy intermediaries are
earning impressive prots, despite the large amounts of money paid to platforms and other new-fangled
intermediaries. See e.g. ibid.; Friedlander, RIAA Year-End Music Industry Revenue Report,p.1.
See e.g. K. Cowdray, ALCS Survey Finds 15% Drop in Average Author Earnings since 2013,The
Bookseller, 27 June 2018, available at <
author-earnings-even-lower-four-years-ago-818891>; D. Dupont, Composer Maria Schneider Warns
Students about the Future of the Music Industry,Bowling Green Independent News, 31 March
2018, available at <
the-future-of-the-music-industry/>; M. Harris, How Much Is a Word Worth?,Medium, 16 April
2018, available at <>;
D. Preston, Why Is it So God damned Hard to Make a L iving as a Writer Today ?,Authors
Guild Bulletin 63, Summer 2017.
See J.B. Stewart, In the Chamber of Secrets: J.K. Rowlings Net Worth,New York Times,24
November 2016, available at <
See E. Kinsella, Damien Hirst and Anish Kapoor Land on UK Rich List (Again),Artnet News, 8 May
2017, available at <>.
See Z. OMalley Greenburg, The Worlds Highest Paid Women in Music 2017,Forbes, 20 November
2017, available at <
See Z. OMalley Greenburg, Americas Wealthiest Celebrities: The Top 10 by Net Worth,Forbes,18
December 2017, available at <
See M. Paulson and D. Gelles, Hamilton, Inc.: The Path to a Billion-Dollar Broadway Show, 8 June
2016, available at <
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the poverty line or working at a day job to support their families.
But that
isnt a new thing.
If creators are earning even less than they used to, there
are other factors at work.
This is a complicated problem with multiple causes, but one of the causes
is that many of the intermediaries in our story have recently gured out
ways to earn more but pay authors less. I alluded earlier to the conict
between old-fangled and new-fangled intermediaries. The legacy intermedi-
aries seem to be incensed that service providers and platforms are collecting
a large share of the revenues earned by copyrighted works. Theyve
invented a catch phrase, the value gap, to describe their complaint,
which is that the new-fangled intermediaries have too much bargaining
power and are able to use that bargaining power to negotiate lower license
fees than the legacy intermediaries believe that they should pay.
Publishers, record labels, and motion picture studios argue that lawmakers
should change the law to tilt the playing eld in their favour, so that they
can bargain for higher fees.
Meanwhile, though, they are making up for
what they believe are pitifully inadequate licensing fees by structuring the
licensing deals to minimise their own obligation to pay royalties to crea-
If Spotify or YouTube pays copyright owners for the use of
music, for example, by giving music publishers and record labels an equity
stake in the company, or by paying an annual up-front blanket license fee,
none of that money needs to be passed on to composers or musicians.
See e.g. T. London and B. Pesner, Outrageous Fortune: The Life and Times of the New American Play
(New York 2009), 5096; R. Deahl, New Guild Survey Reveals Majority of Authors Earn Below
Poverty Line,Publishers Weekly, 11 September 2015, available at <https://www.publishersweekly.
authors-earn-below-poverty-line.html>; J. Gibson, P. Johnson and G. Dimita, The Business of Being an
Author: A Survey of AuthorsEarnings and Contracts, April 2015, available at <
72431/1/Final%20Report%20-%20For%20Web%20Publication.pdf>; M. Kretschmer, Does Copyright
Law Matter? An Empirical Analysis of Creators Earnings, 21 May 2012, available at SSRN: <https://>; M. Kretschmer, S. Singh, L. Bently and E. Cooper, 2011 Copyright
Contracts and Earnings of Visual Creators: A Survey of 5800 British Designers, Fine Artists,
Illustrators and Photographers, 2011, available at <>.
See e.g. H. Finklestein, The Copyright Law: A Reappraisal(1956) 104 U.Pa.L.Rev. 1025, at 1051;
M. ORourke, Bargaining in the Shadow of Copyright Law After Tasini(2003) 53 Case W.Res.L.
Rev. 605, at 61314.
See G. Peoples, War of Words: Labels and Trade Groups Target YouTubesValue Gap’”,Billboard,
13 April 2016, available at <
trade-groups-youtube-value-gap>; see e.g. Joint Comments of the American Association of Independent
Music et. al., In re: Section 512 Study, 31 March 2016, available at <
uploads/2016/03/Music-Community-Submission-in-re-DMCA-512-FINAL-7559445.pdf>; International
Federation of the Phonographic Industry, Europes Creators, Cultural and Creative IndustriesCall
to the European Council: Secure the Aims of the Proposed Copyright Directive in the DSM,12
April 2018, available at <
See e.g. IFPI, Rewarding Creativity: Fixing the Value Gap, available at <
gap.php> (visited 19 April 2018).
See e.g. K. Garcia, Private Copyright Reform(2013) 20 Mich. Telecom. & Technology Law Review
1, at 2223, 2729.
See e.g. 19 Recordings v Sony Music Entertainment, No. 14-CV-1056 (SDNY led 24 June 2015);
Z. OMalley Greenburg, Revenge of the Record Labels: How the Majors Renewed Their Grip on
Music,Forbes, 15 April 2015, available at <
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In a similar vein, publishers have reinterpreted extant contracts and
redrafted new contracts to reduce the royalty rates for digital distribution
of the works they control. In standard 20
century book and music publish-
ing and recording contracts, authors were paid a small percentage of rev-
enue for the manufacture and distribution of hard copies and a larger
share of the income from licensing the work to another business.
made sense; the smaller royalty for hard copies reected the expense of
manufacturing and distributing the copies, neither of which were implicated
by licensing deals. When publishers and record labels licensed works to
music and eBook distribution services to enable the services to make the
works available for paid digital downloads, though, they insisted that
they need only pay the lower royalty rate designated for the sale of hard
copies, and thats the rate that they paid.
On one level, none of this should surprise us. Of course, the people who
control the terms and conditions of use will structure those terms and con-
ditions in ways that best advance their own interests. What I nd notable is
how little attention these recent moves have attracted from legal scholars.
Indeed, even though we are all likely aware of these developments (because
we live in the world), if you read most of what American copyright scholars
have written about copyright revision, youd conclude we dont think that
these developments should worry us as much as other problems.
2015/04/15/revenge-of-the-record-labels-how-the-majors-renewed-their-grip-on-music>. In 2016,
major record labels in the US announced that musicians would eventually be paid a share of the
prots that the labels earned from selling their equity stakes in Spotify, but have been slow to disclose
specics. Z. OMalley Greenburg, Spotify Goes Public at $30 Billion: When Will Artists See Any of
That?,Forbes, 3 April 2018, available at <
04/03/spotify-ipo-goes-public-at-30-billion-when-will-artists-see-any-of-that>. Sony Music
Entertainment sold half of its equity stake in Spotify in April of 2018, earning an estimated $761 mil-
lion. In June of 2018, the company promised that it would pass along a portion of the proceeds from the
sale to artists and independent labels beginning in August. See M. Newman, Sony Music
Entertainment to Start Paying Indie Artists and Labels Spotify Sale Proceeds as Early as August,
Billboard, 14 June 2018, available at <
music-canada-spotify-pay-indie-artists-labels>. Warner Music sold 75% of its stake in Spotify in
May of 2018, but, as of this writing, has not revealed its plans for sharing the money with creators.
See e.g. R. Curtis, How to Be Your Own Literary Agent: An Insider s Guide to Getting Your Book
Published (New York 2003), 6276, 29597; N. Aragon, Note: Calculating ArtistsRoyalties: An
Analysis of the CourtsDualistic Interpretations of Recording Contracts Negotiated in a Pre-Digital
Age(2017) 2017 Cardozo Law Review De Novo 180, at 18488; L. Blake and D.K. Stuart,
Analysis of a Recording Contractin M. Halloran (ed.), The Musicians Business and Legal Guide
(Upper Saddle River 2008), 282, 31213.
See e.g. FBT Productions v Aftermath Records, 621 F.3d 958 (9th Cir 2010); Tavares v Capitol
Records, LLC, 2013 U.S. Dist. LEXIS 34317 (ND Cal. 2013); cf. Keiler v Harlequin Enters., 751
F.3d 64 (2d Cir. 2013) (book publisher evaded 50% license royalty by sublicensing to its own subsid-
iary for an articially low price). Theres been some litigation over this, with mixed results. One court
concluded that the plain language of particular contracts obliges record labels to pay the larger licensing
royalty for digital downloads. FBT Productions, 621 F.3d 958 (9th Cir 2010), 96466. A dierent court
held that the plain language of an essentially similar contract supports the argument that royalties for
digital download licenses should be the same as royalties for the sale of hard copies. Malmsteen v
Universal Music Group, 940 F. Supp. 2D 123, 13233 (SDNY 2013).
This assertion is controversial. Indeed, some scholars will nd it oensive. Everyone who writes copy-
right scholarship views her work as pro-creator and pro-creativity, and believes that her proposals will
improve the way the system works for the ultimate benet of creators, however dened. Im not sug-
gesting that scholars have not cared about creators, or have failed to produce proposals designed to
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European scholars have recently paid somewhat more attention to this col-
lection of issues as part of a contentious eort to revise the European
Directive on Copyright in the Digital Single Market,
and their reports
have been dismaying. Real-world creators encounter signicant obstacles
to enjoying the rights and receiving the compensation that the law in theory
aords them.
Yet proposed solutions seem both modest and unlikely to
eect signicant improvement.
Meanwhile, even those small correctives
seem as if they would be unthinkable additions to current American
eorts at copyright reform.
If all of us can see these issues, at least in broad outline, and if at least
some of us believe that these problems undermine the value and legitimacy
of the copyright system, why have we not come up with better suggestions
for addressing it?
One possibility is that many of us have concluded that its hopeless: the
problem seems insoluble. Copyright intermediaries have too many oppor-
tunities to take advantage of creators and too few reasons to refrain from
exploiting them. Over the past three hundred years, copyright laws have
incorporated a variety of provisions intended to protect creators from over-
reaching intermediaries; none of them has been particularly eective. In the
US, our copyright history is teeming with court decisions that gutted statu-
tory safeguards for authorsrights.
Although US copyright law has always required that transfers of copy-
right be made only by a signed writing,
nineteenth-century publishers
benet them. Im urging, rather, that our scholarship has paid too little attention the practical obstacles
many creators face in taking advantage of the rights conferred by copyright law on copyright owners.
Almost all of us (and I dont exclude myself) have failed to examine the ways that recent copyright
practices and proposals give creators even less money and control than past practices and proposals.
To the extent that we have an imperfect understanding of the mechanics of the copyright system in prac-
tice, our ideas for xing it are likely to fall short.
See European Commission, Proposal for a Directive of the European Parliament and of the Council on
Copyright in the Digital Single Market, 14 September 2016, available at <
ency/regdoc/rep/1/2016/EN/1-2016-593-EN-F1-1.PDF>. Most of the controversy centres on whether
proposals to rebalance the law to provide more robust rights to publishers and impose more onerous
obligations on platforms are good or bad policy. See e.g. P. Samuelson, Legally Speaking: The
EUs Controversial Digital Single Market Directive,61Communications of the ACM, forthcoming
November 2018; Google Criticized for Push Against EU Copyright Reform,Financial Times,26
June 2018, available at <>;
M. Banks, MEPs Rally against Planned EU Copyright Reform,The Parliament, 8 June 2018, avail-
able at <
reform>; K.G. Orphanides, The EUs Bizarre War on Memes is Totally Unwinnable,Wired, 18 June
2018, available at <>.
See e.g. L. Bently, Between a Rock and a Hard Place: The Problems Facing Freelance Creators in the
UK Media Marketplace, A Brieng Document on Behalf of the Creators Rights Alliance, 29 June
2009, available at <>; Gibson, The Business of
Being an Author; Kretschmer, Does Copyright Law Matter?.
Chapter 3 of the current draft EU directive would oblige member states to ensure that authors and per-
formers receive regular reports on the revenue generated by their works and the remuneration to which
they are entitled, and to provide mechanisms for authors and performers to request additional remuner-
ation when the revenues earned from their works are grossly disproportionate to the revenues anticipated
when a copyright assignment or licensing agreement was negotiated. See note 40 above.
See e.g. Copyright Act of 1790, § 2, 1 Stat. 124, 1st Cong. 2d Sess. (1790); Act. of February 3, 1831, §
§ 6, 7, 21stCong. 2d Sess. (1831); Rev. Stat. § § 4964, 4965.
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persuaded courts that that prerequisite did not limit their ability to secure
ownership of the copyrights in works that had not yet been published
and registered.
The copyright renewal term was intended to enable
an author who had assigned her copyright in the rst term to renegotiate
the terms of any licenses or assignments.
In 1943, however, music
publisher M. Witmark & Sons persuaded a divided Supreme Court
that an assignment of the renewal term during the initial term was
enforceable against the author.
In the 1976 Copyright Act, Congress
replaced the renewal term with an inalienable right to terminate any
assignment, grant, or license, and provided expressly that an author
was entitled to terminate notwithstanding any agreement to the con-
The House Report explained that, in contrast to the ownership
of the renewal term, the right to take this action cannot be waived in
advance or contracted away.
Yet, assignees of copyright have devised
strategies for undermining the supposed inalienable termination right,
and have largely succeeded in persuading courts of their eectiveness.
See e.g. Parton v Prang, 18 F. Cas. 1273, 1278 (C.C.D. Mass. 1872); Lawrence v Dana, 15 F. Cas. 26
(C.C.D. Mass 1869); Pulte v Derby, 20 F. Cas. 51 (C.C. D. Ohio 1852). See generally J. Litman, What
Notice Did(2016) 96 B.U.L.Rev. 717, at 72431.
H.R. Rep. No. 2222, 60th Cong. 14 (1909). See J.J. Guinan, Jr., Duration of Copyright: Study No. 30
(1957), 7779, reprinted in Copyright Society of the USA, Studies on Copyright, vol. 1 (1963), 49597;
B.A. Ringer, Renewal of Copyright: Study No. 31(1960), 12122, reprinted in Copyright Society of
the USA, Studies on Copyright, vol. 2 (1963), 503, 51718.
Fred Fisher Music Co. v M. Witmark & Sons, 318 U.S. 643 (1943). The majority rejected the argument
that the statute should be construed to preserve the authors opportunity to renegotiate the terms of
licenses or assignments:
The policy of the copyright law, we are told, is to protect the author if need be, from himself
and a construction under which the author is powerless to assign his renewal interest
furthers this policy. We are asked to recognize that authors are congenitally irresponsible,
that frequently they are so sorely pressed for funds that they are willing to sell their work
for a mere pittance, and therefore assignments made by them shou ld not be upheld....
It is not for courts to judge whether the interests of authors clearly lie upon one side of this
question rather than the other. If an author cannot make an eective assignment of his
renewal, it may be worthless to him when he is most in need. Nobody would pay an author
for something he cannot sell. We cannot draw a principle of law from the familiar stories of
garret-poverty of some men of literary genius. Even if we could do so, we cannot say that
such men would regard with favour a rule of law preventing them from realizing on their
assets when they are most in need of funds. ...
We conclude, therefore, that the Copyright Act of 1909 does not nullify agreements by
authors to assign their renewal interests (ibid., at 65657).
17 USC § 203(a)(5). See generally R.A. Reese, Termination Formalities and Notice(2016) 96 B.U.L.
Rev. 895; Authors Alliance, Termination of Transfers(2017), available at <https://www.authorsalli->.
H.R. Rep. No. 1476, 94th Cong. 125 (1976).
E.g. Larson v Warner Brothers, 640 Fed. Appx. (9th Cir. 2016); Marvel Characters v Kirby, 726 F. 3d
119 (2d Cir. 2013); DC Comics v Pacic Pictures Corp., 545 Fed, Appx. 678 (9th Cir. 2013); Penguin
Group (USA) Inc. v Steinbeck, 537 F.3d 193, 196 (2d Cir. 2008), cert. denied, 129 S. Ct. 2383 (2009);
Milne v Stephen Slesinger, Inc., 430 F.3d 1036, 1039 (9th Cir. 2005). See e.g. L.P. Loren,
Renegotiating the Copyright Deal in the Shadow of the Inalienable Right to Terminate(2010) 62
Fla.L.Rev. 1329; P. Menell and D. Nimmer, Judicial Resistance to Copyrights Inalienable Right to
Terminate Transfers(2010) 33 Columbia Journal of Law & the Arts 227.
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Thus, authorsability to recapture copyright rights has, in practice, been
narrowly limited.
Also in the 1976 Act, Congress narrowed the circumstances under
which an independent contractors work could be deemed a work made
for hire, legally authored by the creators employer. Under the current
copyright act, works created by employees are works made for hire.
Works created by independent contractors, however, can be works
made for hire only if the creator signs a work made for hire contract.
That hasnt prevented courts from concluding that works created by indi-
viduals who are not treated as employees for the purposes of labour and
tax laws should nonetheless be deemed to be employee-created works
made for hire,
or that works created by independent contractors who
have not signed a work made for hire agreement should be considered
to have been authored by the entity that paid for their creation, because
that entitys decision-making authority made it the dominant author
of the work.
Even when the courts construe the statute in authorsfavour, moreover,
those interpretations have little practical eect on authorsopportunities to
control or earn money from their works. In 1993, freelance journalists
led suit against the New York Times, claiming that the Timeslicensing
of their contributions to electronic and online databases infringed their
reproduction, distribution and public display rights. Their initial permis-
sion to the Times to print their articles in its newspaper, they insisted,
did not allow the Times to resell those articles to electronic database ser-
vices. The Times argued that a privilege in the statute permitting the pub-
lisher of a collective work to reprint contributions to the collective work
only as part of the collective work, any revision of that collective
work, or any later collective work in the same series,
authorised it to
license full issues of its newspaper to digital publishers. The trial court
Nor do copyright owners appear to be willing to allow the new or enhanced copyright rights they are
seeking to be subject to comparable recapture provisions. Congress is currently considering the
CLASSICS Act, a Bill that would establish an entitlement to royalties for the digital transmission of
sound recordings that were recorded before US law extended copyright protection to sound recordings.
See S. 2334, title 2, 115th Cong. (2018). Although the Bill is described by the recording industry asso-
ciation as a measure to nally ensure that musicians and vocalists who made those timeless songs
nally get their due, see Recording Industry Association of America, Press Release: Historic
Coalition of 213 Musical Artists Calls on Congress to Pass CLASSICS Act, Fix the Pre-1972
Loophole for Legacy Artists, 13 February 2018, available at <
coalition-213-musical-artists-calls-congress-pass-classics-act-x-pre-1972-loophole-legacy-artists/>, it
includes no provisions that would allow the original authors of the sound recordings to recapture the
ownership of rights they assigned to record labels.
17 USC §§ 101, 201. See Community for Creative Non Violence v Reid, 490 US 730 (1989). In addition
to imposing the requirement of a signed writing, section 101 limits the category of commissioned works
made for hire to nine specic subject matter categories. See United States Copyright Oce, Circular
No. 9: Works Made for Hire (2012), available at <>.
See e.g. JustMed v Byce, 600 F.3d 1118 (9th Cir. 2010); JAH IP Holdings v Mascio, 2014 US Dist
LEXIS 16246 (D. Colo. 2014).
See 16 Casa Duse v Merkin, 791 F.3d 247, 260 (2d Cir. 2015).
17 USC § 201(c).
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In 2001, the US Supreme Court concluded that the purpose of
the statutory privilege was to protect authorsabilities to license their
works to other publishers, while enabling the publisher of the initial col-
lective work to print revised editions without again securing permission
from every contributor. That purpose would be frustrated if the publishers
could license the individual contributions to electronic databases.
In response to the Supreme Courts ruling, the New York Times
announced that rather than compensating 27,000 freelance authors for the
unauthorised licensing of their works to digital databases, it would instead
permit individual authors to request that the Times continue to make all
their works digitally available, without any additional payment, on the con-
dition that the authors release all legal claims against the Times and its data-
base licensees. Otherwise, the newspaper would purge all of those
freelancerscontributions from its database.
Further, in response to the
lawsuit, the New York Times and other large publishers insisted, going for-
ward, that all freelance journalists sign work made for hire or all rights con-
tracts authorising publishers to exploit the works in future as well as
existing media for no additional payment.
As Maureen ORourke noted:
Although the holding in the case ostensibly gave freelancers a bargaining
chip, a lack of bargaining power precludes their obtaining additional con-
sideration for licensing their judicially vindicated rights.
Nor have authors outside of the US fared signicantly better. Recent
studies of the eectiveness of copyright law reforms in the EU designed
to improve the lot of creators have concluded that the reforms enacted so
far have been ineective, primarily because authors lack the bargaining
power to take advantage of them.
Tasini v NY Times, 972 F. Supp. 804 (SDNY 2007), revd 206 F.3d 161 (2d Cir. 2000), ad 533 U.S.
483 (2001).
NY Times v Tasini, 533 U.S. 483, 499506 (2001).
See F. Barringer, Freelancers Suing Again on Copyright,New York Times, 6 July 2001, available at
The Timess current oer to freelancers about 27,000 are aected, the newspaper estimates
allows them to request that their material remain available electronically. It contains a pro-
vision that should you opt to have your work restored, you agree that you will not be com-
pensated and that you will release The Times from any claims relating to your work appearing
in electronic archives such as Nexis.
Any request must cover all of a freelancers contributions to The Times; no freelancers can
pick and choose how much of their work can remain available.
(ibid.). See Tasini v The New York Times: A Note on the Consequences, 2 Complete Review Quarterly
#3, August 2001, available at <>.
See ORourke, Bargaining in the Shadow, pp. 60513.
Ibid., at p. 606.
See e.g. J.C. Ginsburg and P. Sirinelli, Private International Law Aspects of AuthorsContracts: The
Dutch and French Examples(2015) 39 Columbia Journal of Law & the Arts 171; S. Dusollier, C. Ker,
M. Iglesias and Y. Smith, Contractual Arrangements Applicable to Creators: Law and Practice of
Selected Member States, study commissioned by the European Parliament Directorate-General for
Internal Policies (2014), available at <
IPOL-JURI_ET2014493041_EN.pdf>; Europe Economics IViR, Remuneration of Authors of Books
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Too often, copyright scholarswork neglects questions of money. Even
when we focus on authorscompensation, we dontalwayspayattentionto
whether the money actually makes its way into creatorspockets. Recently,
weve been asking collecting societies to do the hard work of managing remu-
neration for many small-change uses.
Weve learned that collecting money
is easy, but guring out how to divide it among worthy claimants is really
The statutory, regulatory, and contractual provisions that authorise col-
lective licensing call for the revenues to be distributed to creators and other
rights holders, but the mechanisms that we use for deciding how to allocate
and pay them are at best imperfect
and often deeply awed.
societies are themselves intermediaries who will seek to protect their own
positions in the copyright food chain.
We know that there are some collect-
ing entities that pay at least a share of their receipts directly to creators. There
are others who pay owners, and rely on the owners to pass the creatorsshare
on. Others dole out the money to organisations that represent creators and task
those organisations with guring out whether and how to distribute the funds
to their members. Still others hold the money in an interest-bearing account
until prospective claimants can agree with each other on who receives what
share, and divide the money up according to their agreement. There are
still others who dont disburse the royalties at all they use the money to
pay administrative costs and fund good works.
and Scientic Journals, Translators, Journalists and Visual Artists for the Use of Their Works, study
prepared for the European Commission (2016), available at <
See A. Katz, Copyright Collectives: Good Solution but for Which Problemin R.C. Dreyfuss,
D. Zimmerman and H. First (eds.), Working Within the Boundaries of Intellectual Property:
Innovation Policy for the Knowledge Society (New York 2010); see e.g. Music Modernization Act,
H.R. 5447, 115th Cong. § 102 (2018) (establishing a new music publisher-owned collective to receive
and distribute royalties for a new statutory blanket license for the reproduction of musical compositions
in the course of digital streaming). See generally D. Gervais (ed.), Collective Management of Copyright
and Related Rights, 3rd ed. (Frederick 2016).
See e.g. W. Fisher III, Promises to Keep: Technology, Law & the Future of Entertainment (Stanford,
CA 2004), 20736; D. Gervais, (Re)structuring Copyright: A Comprehensive Path to International
Copyright Reform (Cheltenham 2017), 23856; European Commission, Directive on Collective
Management of Copyright, 4 February 2014, available at <
right/management/>; European Commission StaWorking Document Impact Assessment
Accompanying the Document Proposal for a Directive of the European Parliament and of the
Council on collective management of copyright and related rights and multi-territorial licensing of
rights in musical works for online uses in the internal market 1929, 11 July 2012, available at
<> (herein-
after Commission StaWorking Document).
See e.g. Litman, Real Copyright Reform, p. 50 and n. 229.
See e.g. Copyright Royalty Board New Developments, 10 March 2017, available at <https://www.crb.
gov/> (announcing suspension of royalty distribution proceedings required by 17 USC § 1007);
Commission StaWorking Document, pp. 1529.
See J. Band and B. Butler, Some Cautionary Tales about Collective Licensing(2013) 21 Michigan
State International Law Review 687; see e.g. M. Long, Publishers Raise New Concerns over SGAE
Practices,IQ Magazine, 11 June 2018, available at <
See e.g. H. Wijminga, W. Klomp, M. van der Jagt and J. Poort, World Intellectual Property
Association International Survey on Private Copying: Law and Practice 2016(2017), available at
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Most legal scholars dont spend much attention examining this problem,
or trying to ascertain what mechanisms dierent collecting entities use for
deciding how to disburse the money they collect. Its as if, once weve pro-
vided that consumers and users must buy a ticket in order to enjoy a copy-
righted work, were done. There may be some policy justication for
charging fees as a purely expressive exercise, so that users will understand
that enjoyment of a copyrighted work has commercial value. Its wasteful,
in the sense that some members of an authors audience will miss encoun-
tering the work because they cantaord or dont want to pay the ticket
price, but we may make that choice nonetheless to send the message that
enjoying works of authorship should not be free.
If thats why were
doing it, though, we should say so. If, on the other hand, our purported rea-
son for levying the charge is to put money into creatorspockets, it might
be a good idea to look to see how much of it actually gets there. At least in
the US, that question hasnt been the focus of much legal scholarship.
Some copyright scholars have begun to ask the question whether and
when creators respond to the rewards promised by copyright, and to try
to harness the insights of disciplines other than the law economics, psych-
ology, neurology, history to see whether it might be possible to come up
with answers.
Itsdicult, though, to evaluate whether the answers to
that question have real-world signicance without knowing whether and
under what circumstances creators will actually collect those rewards.
If Im right that most of us have given up on close scrutiny of author
compensation because we suspect that its a hopeless inquiry, this may
be a good time to re-examine that impulse. That, however, would require
us to confront the questions we no longer ask and the features of the copy-
right system that we seldom notice, because weve grown inured to the
Cf. J.C. Ginsburg, Fair Use for Free, or Permitted-but-Paid?(2015) 29 Berkeley Tech.L.J. 1383.
But see P. DiCola, Money From Music: Survey Evidence on MusiciansRevenue and Lessons About
Copyright Incentives(2013) 55 ACJ 301. There are a number of recent economic and legal studies
from Europe, with discouraging conclusions. See e.g. M. Kretschmer, Copyright and Contracts:
Regulating Creator Contracts: The State of the Art and a Research Agenda(2010) 18 J.Intell.Prop.
L. 141; R. Towse, Economics of Copyright Collecting Societies and Digital Rights: Is there a Case
for a Centralised Digital Copyright Exchange?(2012) 9 Review of Economic Research on
Copyright Issues 3; C. Handke and R. Towse, Economics of Copyright Collecting Societies
(2007) 38 International Review of Intellectual Property & Competition Law 937; R. Towse,
Copyright and Artists: A View From Cultural Economics(2006) 20 Journal Economic Surveys
567; Europe Economics IViR, Remuneration of Authors; M. Kretschmer, Private Copying and
Fair Compensation: An Empirical Study of Copyright Levies in Europe(2011), available at
E.g. G. Lunney, Copyrights Excess: Money and Music in the US Recording Industry (Cambridge
2018); C. Sprigman, Copyright and Creative Incentives: What We Know (and Dont)(2017) 55
Hous.L.R. 451; R. Tushnet, Economies of Desire: Fair Use and Marketplace Assumptions(2009)
51 William & Mary Law Review 513; D. Zimmerman, Copyright As Incentives: Did We Just
Imagine That?(2010) 12 Theo Inq Law 29; M. Senftleben, Copyright, Creators, & Societys Need
for Autonomous Art the Blessing and Curse of Monetary Incentives(2017) in Giblin and
Weatherall, What If We Could Reimagine Copyright?, p. 25. See also CREATe Copyright Research
Centre at the University of Glasgow, Copyright Evidence Wiki, available at <http://www.copyrightevi-> (cataloguing empirical studies).
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ways that the copyright system fails to deliver on the promises of copyright
In the rest of this essay, Ill argue that one reason we talk less than we
should about how the copyright system commonly fails to reward creators
is that our assumptions about legal property rights distort our perceptions of
the way the copyright laws operate. Copyright experts take a lot for granted
about the way the copyright system works and is supposed to work.
Copyright is a property right. Were lawyers. The legal characteristics of
property rights are basic building blocks of our legal education.
One element of legal property rights is control, and most of the debates
over treating copyright as a form of property have focused on the control
that a property owner is able or should be able to exercise.
Control is
an important aspect of property, but it isnt the only or even the most
important aspect. After all, we have lots of dierent ways to give an indi-
vidual legal control over something without giving her a property right.
What makes property rights special is that they are alienable.
something as property makes it easier to sell. We dene a right as a prop-
erty right to encourage its transfer.
This intrinsic feature of legal property
is something that its easy for lawyers to take for granted. What makes it
possible for publishers, record labels, and other intermediaries to behave
the way theyve been behaving is that the powers conferred by a copyright
belong to the copyright owner rather than the author.
That strikes non-
lawyers as odd, but its second nature to us. Our copyright system empow-
ers publishers and record labels to structure licensing deals for their own
benet, since they own the copyrights, and set the terms and conditions
for copyright licenses.
Because were lawyers, we know that the grantee of a property right
stands in the shoes of the grantor and is entitled to exercise the powers
embodied in the property right. We assume that the original property
owner has had the opportunity to extract compensation for the value of
the right, because thats just how property rights work. Indeed, copyright
lawyers and scholars sometimes use the words authorand copyright
See e.g. L. Lessig, Free Culture (New York 2004), 83173; Patry, Moral Panics and the Copyright
Wars, pp. 10932; S. Aistars, D. Hartline and M. Schultz, Copyright Principles and Priorities to
Foster a Creative Digital Marketplace(2016) 23 Geo. Mason L.Rev. 769; M. Grynberg, Property
Is a Two-Way Street: Personal Copyright Use and Implied Authorization(2010) 79 Fordham L.
Rev. 435; R.P. Merges, The Concept of Property in the Digital Era(2008) 45 Hous.L.R. 1239;
A. Mosso,Is Copyright Property?(2005) 42 San Diego L.Rev. 29.
Accord, Ginsburg, The Place of the Author in Copyright, pp. 6667.
See e.g. J. Litman, Information Privacy/Information Property(2000) 52 Stan.L.Rev. 1283, at 1295
See e.g. Fisher, Promises to Keep, pp. 4770, 20405; Bently, Between a Rock and a Hard Place,
pp. 1521; Kretschmer, Does Copyright Law Matter?, pp. 3233.
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ownerinterchangeably, treating them as synonyms.
After all, the author
is the initial copyright owner, and the person to whom she transfers those
rights is entitled to step into her shoes. For most purposes, in the eyes of the
law, the owner is the author.
We could take a more nuanced look at how legal copyright property
rights actually behave in the world. We should examine our view of
legal property to identify the things that our assumptions may prevent us
from seeing.
Im going to take a short detour to tell a story that, at least at rst, isnt
going to seem as if it has any bearing on copyright law. It begins about
400 years ago. In the sixteenth and seventeenth centuries, European colo-
nists sailed to North America to develop new territories in the names of
their sovereigns.
Unfortunately, the new land already had occupants who had lived on that
land for centuries. The European settlers moved in anyway. Sometimes, it
was possible for the Europeans and the indigenous tribes to coexist, at least
initially; in other situations, though, the indigenous Indian tribes occupied
area that the Europeans wanted to control.
The Indians werent white,
werent Christian and werent farmers. They werent using the land for
what the Europeans believed to be the best and highest purpose.
of the European settlements felt little compunction about seizing the land
from its occupants. Violence ensued.
Eventually, after enough people had been killed and enough property had
been damaged, the settlements and the tribes reached agreements, dividing
See e.g. J.C. Ginsburg, Copyright Use and Excuse on the Internet(2000) 24 Colum.-VLA J.L. & Arts
1, at 41; R. Oman, Going Back to First Principles: The Exclusive Rights of Authors Reborn(2008) 8
Journal of High Technology Law 169, at 17677, 180.
See e.g. B. Viswanathan and A. Mosso,Open-Access Mandates and the Seductively False Promise of
Free’”, Center for the Protection of Intellectual Property Brieng Paper 4, April 2017, available at
<>. Moral rights, of course, are an important exception to this rule.
Even in countries with robust moral rights protection, however, those rights appear to have negligible
economic value and restrain the exploitation of copyrighted works only in extreme cases.
See generally R.T. Anderson, B. Berger, S. Krakoand P.E. Frickey, American Indian Law: Cases and
Commentary, 3rd ed. (St. Paul 2015), 2225.
See generally e.g. N.J. Newton (ed.), Cohens Handbook of Federal Indian Law: 2005 Edition (Newark
See ibid.; E. Kades, The Dark Side of Eciency: Johnson v MIntosh and the Expropriation of
American Indian Lands(2000) 148 U.Pa.L.Rev. 1065, at 107677.
See B. Berger, Red: Racism and the American Indian(2009) 56 UCLA Law Review 591, at 60307.
See e.g. E.A. Schmidt, The Divided Dominion: Social Conict and Indian Hatred in Early Virginia
Boulder, CO (2014), 4561 (Anglo-Powhatan wars between English settlers in the Virginia Colony
and the Powhatan tribe); S. Feeley, “‘Before Long to be Good Friends:Diplomatic Perspectives of
the Tuscarora Warin M. LeMaster and B.J. Wood (eds.), Creating and Contesting Carolina
(Columbia 2013), 140 (Tuscarora war between Tuscarora tribe and British, German and Dutch settlers
in North Carolina); E. Haefeli, Kiefts War and the Cultures of Violence in Colonial Americain M.A.
Bellesiles (ed.), Lethal Imagination: Violence and Brutality in American History (New York 1999), 17
(war between Dutch settlers in the New Netherland colony and the Lenape tribe).
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up the disputed territory between them.
Those agreements, though, turned
out to be unstable. The European-Americans kept seeking to expand their
territory. Over the next 200 or so years, they used money, persuasion,
threats, citizen violence, and military force to convince or compel Indian
tribes to relocate westward to more remote and less desirable land.
Along the way, more violence ensued.
The American army was busy con-
ducting one or another war with Indian tribes for most of the nineteenth
American courts concluded that Indians had an enforceable legal right to
occupy tribal land, but that they didnt actually own it.
The US federal
Government came under immense pressure to open Indian land for settle-
ment by white European-Americans.
It tried to use the tools at its disposal
(money and soldiers) to move the tribes out of the way of white homestea-
ders. Indian tribes who had agreed to resettle west of the Mississippi river,
only to be asked to move again, were increasingly reluctant to consent to be
Besides, the Government was running out of surplus land.
Yet more violence followed.
White Americans resented the tribescontrol of land that they believed
should by rights be available to them. They pursued a variety of devices,
many of them unlawful, to wrest control of the land from the tribes.
What ended up doing the trick was a series of statutes of which the most
famous was the Dawes Act, also known as the General Allotment Act of
Instead of taking the land away from the tribes, the Dawes Act
gave title to the tribal land to individual Indians. The Act divided the
vast tracts of territory controlled by Indian tribes into many 160-acre
plots, and awarded each plot to an individual Indian head of household,
See S. Banner, How the Indians Lost Their Land (Cambridge, MA 2005), 85111.
See e.g. Anderson et al., American Indian Law, p. 50; Banner, How the Indians Lost their Land,
pp. 191227.
See e.g. Banner, How the Indians Lost Their Land, pp. 12129; Newton, Cohens Handbook, pp. 35
36, 3940, 44; A. Deboe, A History of the Indians of the United States (Norman, OK 1970), 10116;
A. Deboe, The Road to Disappearance: A History of the Creek Indians (Norman, OK 1966), 72107.
See Banner, How the Indians Lost Their Land, pp. 23747; see e.g. Newton, Cohens Handbook,
pp. 5154, 71; E.A. Schwartz, The Rogue River Indian War and Its Aftermath: 18591980 (Norman,
OK 1997), 69160.
E.g. JohnsonsLesseevMIntosh, 21 US 543 (1923);see Banner, How the Indians Lost TheirLand, pp. 150
90; L.G. Robinson, The Judicial Conquest of Native America: The Story of Johnson v MIntoshin
C. Goldberg, K.K. Washburn and P.P. Frickey (eds.), Indian Law Stories (New York 2011),29.
See Banner, How the Indians Lost Their Land, pp. 195226.
See ibid., at pp. 197201, 21217, 22226; Newton, Cohens Handbook, pp. 5154, 73.
See Banner, How the Indians Lost Their Land, pp. 22836.
See e.g. Anderson et al., American Indian Law, pp. 7477; Newton, Cohens Handbook, pp. 7071, 73.
See Banner, How the Indians Lost Their Land, pp. 21427, 23745.
General Allotment Act of 8 February 1887, 24 Stat. 388, ch. 119. See also Act for the Protection of the
People of Indian Territory, Pub. L. 55-515, 30 Stat. 495 (1898) (Curtis Act); Dawes Act Amendment
of 1891, 26 Stat. 794 (1891); General Allotment Act Amendment of 1906, Pub. L. 59-149, 34 Stat. 182
(1906) (Burke Act); Act Authorizing the Secretary of the Interior to allot homesteads to the natives of
Alaska, Pub. L. 59-171, 34 Stat. 197 (1906). For historical background on the allotment policy and a
brief description of initial allotment eorts preceding the Dawes Act, see generally Newton, Cohens
Handbook, pp. 6669, 7578.
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in trust for a short period and then in fee simple. During the trust period, the
Indian owners were permitted to lease the plot to white Americans. After
the trust period expired, the Indian household that owned the land was
free to sell it to any buyer. Any unallocated plots were deemed surplus
land, and were purchased from the tribe by the federal Government and
made available for sale to non-Indians. At the time, Im sure that some
of the supporters of the law believed it would empower individual
Indians to vest them with ownership of a plot of land; other supporters,
though, had more cynical motives. In any event, to the extent that one pur-
pose of the statutes was to encourage the transfer of land from Indian tribes
to white American citizens, it was a stunning success. Very quickly, the
majority of the land occupied by Indian tribes passed out of Indian hands
through sales to non-Indians. The winners were white settlers and land
speculators; the Indians ended up both impoverished and often displaced.
I want to draw a couple of parallels from that story to a statute that copy-
right lawyers are more familiar with. This story starts at about the same
time. In the sixteenth and seventeenth centuries, the members of the
StationersCompany had a monopoly on publishing, augmented by a
naked horizontal restraint of trade among the members.
After more
than a century controlling the business of publishing, the Stationers surely
felt entitled to continue to exercise that control. They had, after all, invested
signicant money and eorts into printing and selling their texts. When
Parliament declined to re-enact the licensing act that gave the members
of the Stationers company their printing monopoly, the Stationers engaged
in strenuous lobbying to persuade the Government to restore it.
I dont want to simplify the complex set of considerations that went into
enacting the Statute of Anne,
or to minimise the provisions included for
the protection of universities, readers and consumers,
or to suggest that
Banner, How the Indians Lost Their Land, pp. 25793; see J.V. Royster, The Legacy of Allotment
(1995) 27 Ariz.St.L.J. 1, at 1014. In 1934, Congress repudiated the allotment program. The Indian
Reorganization Act of 1934 prohibited further allotment of Indian land and sought to return to the tribes
some portion of the 90 million acres of Indian land that had passed into non-Indian ownership. Indian
Reorganization Act, Pub. L. No. 73-383, 48 Stat. 984 (1934) (codied as amended at 25 U.S.C. §§ 461-
479 (1976). See Blackfeet Tribe of Indians v State of Montana, 729 F.2d 1192 (9th Cir. 1984) (en banc),
ad 471 US 759 (1985).
See e.g. L.R. Patterson, Copyright in Historical Perspective (Nashville 1968), 2877; I. Gadd, The
Stationers Company in England before 1710in I. Alexander and H.T. Gomez-Arostegui (eds.),
Research Handbook on the History of Copyright Law (Cheltenham 2018), 81, 8892.
See C. Blagden, The Stationers Company: A History 14031959 (London 1960), 15377; R. Deazley,
On the Origin of the Right to Copy (Oxford 2004), 150; I. Alexander, All Change for the Digital
Economy: Copyright and Business Models in the Early Eighteenth Century(2010) 25 Berkeley
Tech.L.J. 1351; Gadd, The Stationers Company in England before 1710, pp. 9295.
Statute of Anne, 8. Anne, c. 19 (1710). See e.g. Deazley, On the Origin of the Right to Copy, pp. 3150;
Alexander, All Change for the Digital Economy, pp. 135462; H.T. Gomez-Arostegui, The Untold
Story of the First Copyright Suit under the Statute of Anne in 1710(2010) 25 Berkeley Tech.L.J. 1247,
at 125158; J. Litman, ReadersCopyright(2011) 58 J. Copyright Socy U.S.A. 325, at 33235.
See A. Katz, Copyright, Exhaustion, and the Role of Libraries in the Ecosystem of Knowledge(2016)
13 I/S Journal of Law & Policy for the Information Society 81, at 8486; Litman, ReadersCopyright,
pp. 33335.
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some of the laws supporters didnt believe that it would empower authors.
Whatever the intention, the law ended up working out pretty well for the
members of the Stationerscompany. By establishing an assignable prop-
erty right for authors and their assigns, the law encouraged authors to con-
vey their copyrights to printers and publishers (who, after all, were the folks
with the printing presses), where they have stayed pretty much for the next
300 years.
The rest of the world followed that model.
In almost every country,
authors receive copyright protection as an initial matter, but those copy-
rights are transferred to and then owned and controlled by publishers and
other intermediaries.
In the US, where capitalism is both our economic
system and our dominant religion, courts were especially eager to conclude
that authors had conveyed their copyrights to publishers, even in the
absence of any evidence, and that inclination has persisted.
When it
didnt work to simply presume that the copyright had been transferred,
our courts invented the work made for hire doctrine out of whole cloth.
The moral of both of these stories is that deeming a resource to be a prop-
erty right is often an extremely eective way to gain control of that
resource, especially when you dont have control of it at the outset.
When the law transforms something that was not formerly property into
a property right, the accompanying alienability will cause control of it to
ow to those with the most bargaining power. If you are looking to get
your hands on some arable land or to regain your control of the printing
of texts, creating new property rights turns out to be an excellent strategy.
Sometimes the original recipient of the property benets, but not always.
Sometimes the world improves as a result; other times it doesnt.
So, heres the upshot: immense sums of money slosh through the current
copyright system, but only a tiny share of that money ends up in authors
pockets. By some accounts, that share has been decreasing. We all know
that, because, as I said, we live in the world and see the evidence all around
us, but we have tended to overlook it when we talk about copyright law
reform. Over the past 300 years, weve expanded and extended copyright
See Patterson, Copyright in Historical Perspective, pp. 14350, 21321.
See e.g. O. Bracha, The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The
Life of a Legal Transplant(2010) 25 Berkeley Tech.L.J. 1427.
See J.C. Ginsburg and E. Treppoz, International Copyright Law US and EU Perspectives: Text and
Cases (Cheltenham 2015); P. Goldstein and B. Hugenholz, International Copyright, 2nd ed. (Oxford
2010), 24469; Ginsburg, The Place of the Author in Copyright, pp. 6366.
See Litman, What Notice Did, pp. 73234; see e.g. Bleistein v Donaldson Lithographing Co., 188 U.
S. 239, 24849 (1903); Edward Thompson Co. Am. Law Book Co., 119 F. 217, 219 (C.C.S.D.N.Y.
1902); Colliery Engr Co. v United Correspondence Schs., 94 F. 152, 153 (C.C.S.D.N.Y. 1899).
See C. Fisk, Authors at Work: The Origins of the Work-for-Hire Doctrine(2003) 15 Yale J.L. &
Human. 1.
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repeatedly, and larded the law up with new licenses and payment obliga-
Weve failed, however, to pay enough attention to how or
whether the intermediaries tasked with distributing the revenues actually
disburse them. We dont look inside the black box surrounding the authors
conveyance of her rights to a new owner. Because we understand how
property rights work, we trust and assume that the prots owing from
copyright expansion redound to the benet of authors.
But, because we live in the world, we know, or should know, that often
they dont. If we believe that thats a problem (and I happen to), we wont
be able to gure out how to x it without a careful examination of what is
inside the black box. That means asking some questions that we arentin
the habit of asking, and that copyright owners are not in the habit of
(Let me say, parenthetically, that if we decide that it isnt a problem that
authors receive so small a share of the proceeds from their works, the fuss
about the so called value gapmakes even less sense. If we believe that
economics and policy support the conclusion that authorsteeny-weeny
percentage of the vast sums generated by the enjoyment of works of enter-
tainment and information is the right amount to pay them, its hard to see
any justication for interfering in the negotiations among commercial dis-
tributors to dictate which of them gets the largest share of the very substan-
tial remainder.)
If the problem is worth addressing, though, we should have learned by
now that it isnt a useful solution to throw more money and control at copy-
right owners and trust that, this time, they will share a larger part of it with
I want to emphasise the narrow limits of the argument that Im making.
Im not arguing that the alienability of copyrights is itself the problem, nor
that I believe that we could solve it simply by limiting copyright transfers or
making rights inalienable. After all, consider Germany. Germany treats
copyrights as inalienable, at least formally,
but German authors dont
appear to enjoy signicant nancial advantages over authors from other
I think the role that the alienability of property rights plays
in my argument is twofold. First, whenever we have signicant disparities
See e.g. N.W. Netanel, Copyrights Paradox (Oxford 2008), 5480.
I dont mean to minimise the practical diculties posed by intermediariesinsistence that contract terms
and payments are proprietary information that they are entitled to keep secret. See e.g. P. DiCola and
D. Touve, Licensing in the Shadow of Copyright(2014) 17 Stanford Technology Law Review 397, at
See German Copyright Act §§ 29, 31.
See e.g. M. Kretschmer and P. Hardwick, AuthorsEarnings from Copyright and Non-Copyright
Sources: A Survey of 25,000 British and German Writers(Dorset 2007), available at https://micro-
sites.bournemouth; Kretschmer, Does Copyright Law Matter?, pp. 1215; Senftleben, Copyright,
Creators, & Societys Need for Autonomous Art, p. 53. See also e.g. Ginsburg and Sirinelli,
Private International Law Aspects of AuthorsContracts(examining private international law obsta-
cles to implementing author-protective legislation enacted in France and the Netherlands).
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in wealth and bargaining power, the distribution of freely alienable property
rights is almost always going to mirror and will often exacerbate those dis-
parities. Second, the legal dogma surrounding property rights, which, as
lawyers, weve inhaled since we were students, can keep us from appreci-
ating those disparities. We dont pay enough attention to the use of alien-
able property rights as a device to allow powerful actors to appropriate
valuable items in the control of less powerful actors.
Is the problem indeed as intractable at it sometimes seems, or is there some-
thing we could do to address it?
Copyright in the twenty-rst century is a byzantine legal ecosystem. I
believe that there would be real value in our exploring that ecosystem, care-
fully and from the inside, in order to understand the reasons that it has per-
sistently given creators short shrift. That would involve our taking a
painstaking look at the way that authors and copyright owners structure
their interactions, to gure out where, if anywhere, an intervention might
be eective.
I dont have an easy solution to propose. Its possible, but unlikely, that
we could tweak copyright ownership law or revise copyright licensing rules
in ways that could signicantly improve the world for at least some
Throwing more copyright rights at copyright owners
unlikely to trickle down to creators at least unless and until we understand
more of the dynamic that results in their getting such a small share of the
proceeds from their creations. Adjusting the law to enhance the bargaining
power of publishers over platforms or platforms over publishers
See e.g. J.E. Cohen, Conguring the Networked Self (New Haven 2012), 22366; Gervais, Collective
Management of Copyright and Related Rights, pp. 191215; W. Patry, How to Fix Copyright (Oxford
2011), 17788; J. Silbey, The Eureka Myth: Creators, Innovators and Everyday Intellectual Property
(Stanford 2015), 27485; Loren, Renegotiating the Copyright Deal; R.A. Reese, Optional Copyright
Renewal: Lessons for Designing Copyright Systems, The 38 Annual Horace J. Manges Lecture(2015)
39 Columbia Journal of Law & the Arts 145; M. Van Houweling, Making Copyright Work for Authors
Who Write to Be Read(2015) 38 Columbia Journal of Law & the Arts 381.
See e.g. H.R. 1836, Fair Play Fair Pay Act, 115th Cong. (2017) (giving sound recording copyright own-
ers new exclusive right to perform their sound recordings over AM and FM radio); C. Geiger,
O. Bulayenko and G. Frosio, The Introduction of a Neighbouring Right for Press Publishers at EU
Level: The Unneeded (and Unwanted) Reform(2017) 39 EIPR 202.
See e.g. Joint Comments of Amer. Assn of Independent Music et. al., U.S. Copyright Oce: In re
Section 512 Study, Docket No. 2015-7, 31 March 2016, available at <
tent/uploads/2016/03/Music-Community-Submission-in-re-DMCA-512-FINAL-7559445.pdf>; J. Chu
and T. Marino, Victims of IP Theft Need Better Protection,The Hill, 12 March 2014, available at
<>; J. Taplin, Is it
Time to Break Up Google?,New York Times, 22 April 2017, available at <https://www.nytimes.
com/2017/04/22/opinion/sunday/is-it-time-to-break-up-google.html>; S. Carlisle, DMCA
TakedownNotices: Why TakedownShould Become Takedown and Stay Downand Why Its
Good for Everyone,Nova Southeastern University Copyright Oce Blog, 23 July 2014, available
at <>; E. Harmon, “‘Notice and Stay DownIs
Really Filter Everything,Electronic Frontier Foundation Deeplinks Blog, 21 January 2016, available
at <>.
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calculated to make life better for creators. I dont see much promise in any
of the pending statutory or treaty proposals currently on the table. It may be
that those proposals are the only proposals that have any practical chance of
adoption, precisely because Reed Elsevier, Vivendi, Disney or Google
wont countenance any new law or treaty that leaves them no better o
than the current law. Copyright intermediaries have enough political
power to insist on watering down reform proposals until they will be of lit-
tle actual use to creators, and have recently exercised that power to revise
legislative and treaty proposals in their favour.
Over the past 20 years,
weve seen several unsuccessful eorts to reform national and international
copyright law-making processes to weaken the inuence wielded by power-
ful copyright players.
Such eorts face obstacles that seem insurmount-
able. The rm hold that copyright intermediaries have on national and
international law-making processes, and their current preoccupation with
marshalling all available resources to vanquish each other, suggest that real-
istic opportunities for author-empowering copyright reforms may be scant.
I suspect that we may end up concluding that the more promising propo-
sals are only tangentially related to copyright law. Many creators lack the
bargaining power to exercise the rights theoretically aorded to them by
current law.
If the pivotal problem is a lack of bargaining power, though,
new or enhanced property rights are unlikely to solve it. It is just remotely
possible that we might make more headway by attacking the problem from
the other end. There may be interventions to address the bargaining power
decit more directly. Catherine Fisk has argued that encouraging authors to
engage in collective bargaining may be the most practical solution, even if
the price of that bargaining would be the loss of copyright ownership.
can imagine requiring the collecting entities that dont currently pay the
creatorsshare of royalties directly to creators to do so from now on.
Some scholars have suggested that self-publishing over the Internet may
allow creators to compete directly with intermediaries and to collect a larger
share of the proceeds from their works.
My colleague Jeremy Peters has
See e.g. R. Giblin, Should It Be Copyrights Role to Fill Houses with Books?in S. Frankel and
D. Gervais (eds.), Intellectual Property and Regulation of the Internet: Th e Nexus with Human and
Economic Development (Wellington 2017); M.E. Kaminski, The Capture of International
Intellectual Property Through the US Trade Regime(2014) 87 S.Cal.L.Rev. 977.
See e.g. G. Krikorian and A. Kapczynski (eds.), Access to Knowledge in the Age of Intellectual
Property (New York 2010); L. Lessig, Republic, Lost: How Money Corrupts Congress and a Plan
to Stop It (New York 2011).
See e.g. Bently, Between a Rock and a Hard Place; Ginsburg and Sirinelli, Private International Law
Aspects of AuthorsContracts;ORourke, Bargaining in the Shadow.
See C. Fisk, Hollywood Writers and the Gig Economy(2018) 2017 U.Chi. Legal F. 177.
See e.g. Future of Music Coalition, Principles for Artist Compensation in New Business Models,2
April 2009, available at <
See e.g. J.M. Garon, Digital Hollywood 2.0: Reimagining Film, Music, Television and Publishing
Distribution as a Global Artist Collaborative(2013) 21 Michigan State International Law Review
563; ORourke, Bargaining in the Shadow, p. 638.
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suggested that we could get a lot of mileage from encouraging or requiring
copyright owners to adopt generally recognised accounting standards, along
with mandated, publicly-available annual audits. I suspect we might get
somewhere by imposing labelling rules that required purveyors of copies
of or access to copyrighted works to disclose the percentage of the purchase
price that will be paid directly to creators of the work.
It might be useful
to set up and fund government or non-prot organisations tasked with edu-
cating and supporting creators in appreciating and enforcing their current
legal rights against the entities to which theyve transferred their
None of these approaches comes from the copyright scholars usual tool-
box. Theres value, though, in exploring the copyright system from
unaccustomed vantage points. If nothing else, it can help us to appreciate
what we tend not to see and why we dont see it.
Cf. R. Giblin, The Author Made 3p from the Sale of this Book,The Authors Interest Blog, 3 April
2018, available at <>.
E.g. ORourke, Bargaining in the Shadow, pp. 63738. See generally Bowker, Self-Publishing in the
United States 201015(2015), available at <
ing-report2015.pdf>; R. Shapiro and S. Aneja, Unlocking the Gates: Americas New Creative
Economy(2018), available at <
C.L.J. 23What We Dont See When We See Copyright as Property
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... Researchers, for instance, publish articles that can easily be copied and distributed, but they also make money by teaching at universities and similar institutions, with the pay for their teaching often positively correlated with their research output. Forgetting for a moment about the fact that it is in general publishers and not the authors themselves who hold the copyrights of the articles, it would be possible to eliminate copyrights on scientific articles and instead subsidize teaching in higher education, or increase such subsidies if they are already in place for other reasons (in the case of scientific publishing, it seems that those who profit the most from copyright are not the originators but the publishers: there are arguments that this is not an exception, but that the introduction of copyrights in general mainly benefits intermediaries and not originators, see [7]). Secondary markets (with activity or sales complementary to those in the primary copyright-protected market) do not need to exist in all areas. ...
Full-text available
Intellectual property rights are monopoly rights, which have undesirable welfare properties. Therefore, several studies suggest using rewards as incentives for innovation instead. However, these studies have thus far had little effect on actual policy, possibly because such rewards may be difficult to implement in practice. We suggest a new way of providing incentives to originators, which is easier to implement. Our suggestion can be used if there is an additional market in which originators operate, where copying is not easily possible. In this case, intellectual property rights in one market can be replaced by subsidies in the other market. Taking the music industry as example, copyrights in the records market could be replaced by subsidies in the market for live performances. We develop a partial equilibrium model that can be used to analyze in which cases the replacement of intellectual property rights in one market with subsidies in another market is welfare improving and better for the originator. A numerical application example suggests that the subsidy scheme may indeed be better in the music industry. The subsidy scheme can be implemented as a voluntary option, which would even be possible without changing the legal framework of intellectual property rights.
... Some young artists do not feel the need to use any intermediary beyond digital platforms to promote themselves, monetize their skills and protect their rights instead of conventional ways of collecting their royalties, resulting in inequitable and unproductive distribution of income (Leenders et al., 2015;Handke, 2016;Street, Laing, & Schroff, 2018;Mustonen, 2019). Litman (2018) clearly stated that copyright causes a disproportionated distribution of low income and less power to artists, while transferring all power and maximised income to intermediaries as subsequent copyright holders. Furthermore, the copyright literature addresses this issue perfunctorily, which makes this problem invisible. ...
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Full-text available
Objectives: Artists and performers are generally incentivised by the ownership of their work. Their income is generated based on the related rights and neighbouring rights. However, the economics of the copyright studies has excluded the most essential link between artists and their source of artistic and intellectual production, namely the net income that determines their stability. In such a subjective industry, problems of the rights holders should be described from their perspective to bring fundamental solutions and innovation. Background: In the literature, the economic relations of the Collective Management Organizations (CMOs) and digital platforms with copyright users are largely researched. The net income for the copyright holders are either rarely estimated or mostly ignored. Therefore, this exploratory research brings to conventional studies on the economics of copyright the most crucial perspective regarding on the industry’s contribution to its sustainability. Data/Methods: The research consisted of interviews with artists and performers, who were randomly selected from databases of CMOs (ZAIKS, Stoart) and social media, using pre-defined online surveys consisting of closed questions designed to study explore the economics of copyright from the artists’ perspective. In total 40 questions have been stated, they were divided into 4 categories each consisting 10 questions. These categories include the perspective on producers/service companies, the perspective on intermediaries (such as CMOs, Digital Platforms etc.), perspective on governments and perspective on regulators/regulations/law. The survey design within each of main themes asked their overall relationship status with the stakeholder in question, including their need in relation to the added value they bring to the wellbeing of artists, as well as their shortcomings that ultimately result in the loss of potential income for artists and their support in catastrophic situations such as the Covid-19 pandemic. Results were evaluated using taxonomic methods with multivariate comparative statistical analysis. Expected Results: The findings explain the need for industry transparency within a better regulatory environment through supportive and protective government guidance in the light of the Covid-19 pandemic crisis and its impact. Policy Implications: We strongly believe that state support for the intellectual property rights of artists and performers must be strictly regulated. Moreover, the perspective of assessing their way of working with possible irregularities should be separated from the conventional way of thinking about work. A wide range of services should be considered in advance, from a stable social security framework to easily accessible funds for their needs.
... by the copyright system(LITMAN, 2018), and this is only one of the issues motivation, and there are others, such as the "need" for monitoring and filtering.Article 13 of the Directive imposes a general monitoring obligation since it requires the monitoring of the activities of all users.(STALLA-BOURDILLON et al., 2017), although the Court of Justice of the European Union has already observed that a filtering system would violate the right to protect personal data and the freedom to receive or transmit information that users have in accordance with Articles 8 and 11 of the Charter of Fundamental Rights of the European Union, by failing to ensure a balance between protection of intellectual property rights and freedom to conduct business, protection of personal data and freedom to transmit information(COLANGELO, MAGGIOLINO, 2018). ...
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The European Parliament sanction the Copyright Directive in the Digital Single Market, the assertive theme of intellectual property, its availability in communications between Internet users and issues related to its civil liability. The Directive was controversial, especially in its art. 13, in which it intends, in other words, to transform the faultless liability of online content providers and intermediaries into objective liability. (1) who are the stakeholders and what motivations have led to the existence of the Directive? (2) what the propose in terms of changes in civil liability on the internet? (3) what is its relation to fundamental human rights, given the concern of so many relevant names? and (4) what are the possible impacts of the Directive on society and the market? The results show that the controversy is in the scope of the relation between intellectual property, fundamental rights and tendencies of incentive to innovation.
Drawing on fascinating archival discoveries from the past two centuries, Brent Salter shows how copyright has been negotiated in the American theatre. Who controls the space between authors and audiences? Does copyright law actually protect playwrights and help them make a living? At the center of these negotiations are mediating businesses with extraordinary power that rapidly evolved from the mid-nineteenth to mid-twentieth centuries: agents, publishers, producers, labor associations, administrators, accountants, lawyers, government bureaucrats, and film studio executives. As these mediators asserted authority over creativity, creators organized to respond, through collective minimum contracts, informal guild expectations, and professional norms, to protect their presumed rights as authors. This institutional, relational, legal, and business history of the entertainment history in America illuminates both the historical context and the present law. An innovative new kind of intellectual property history, the book maps the relations between the different players from the ground up.
If copyright is framed as just one of the many tools used to facilitate production in the larger theatrical economy, it is also possible to envision copyright law’s development outside the prism of dramatist-centric expansion narratives. As scholars including Oren Bracha and Catherine Fisk have shown, author rhetoric lives throughout the decisions of courts in the second half of the nineteenth century.1 Developments in the law suggest a more fluid framework than one that prioritized the rights of author dramatists, however. There was broad space within the law to accommodate theatrical mediators and the industry structures they created.
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In "Copyright and a Synergistic Society," I analyze a disturbing moral and psychological trend that has arisen in contemporary copyright scholarship—the tendency to criticize and demoralize the individual author of creative works and glorify collectivist works of art, or those which are perceived to be created by groups of often unidentified and unrelated persons. This “groupthink” mentality, which has become a buzz word in copyright scholarship and is aided by the unrestrained digital proliferation of intellectual products, is a dangerous return to primitive principles of collectivism which threaten to harm the continued creation of works of individual genius. In sharp contrast with the majority of legal scholarship on the subject matter, this article explores the continued viability of the individual creator and asserts that the concept of author as contemplated by all iterations of the Copyright Act remains a viable and workable doctrine which should not be eviscerated. In this article, which critically examines copyright theory in a unique context blending history and principles of behavioral psychology and contributes to the often contentious contemporary debate on the nature of creativity, I will show that continuing to foster a regime of rights that are exclusively held and controlled by individual authors will ultimately result in not only more and better works, but also will contribute to a happier—or what behavioral psychologists term a “synergistic”—society. This Article is both relevant and necessary as a contribution to copyright scholarship because it carefully and critically approaches the authorship debate from a rational perspective that is often overlooked by academicians and other experts who examine the important issue. It is intended to provide a well-researched and comprehensive history on the concept of copyright authorship from a perspective of history and behavioral psychology and offer an alternative—if not, highly controversial—perspective on the important issue of individual creativity.
The digital economy has great potential, but it also entails risks. The notion of personal property and ownership is under threat because of the shift to digital distribution and ubiquitous embedded software. This book makes a case for the importance of ownership in the digital age. It argues that the rights associated with ownership serve critical functions of promoting cultural preservation and innovation as well as protecting consumer autonomy. Technological developments and the aggressive efforts of IP rights holders, however, are gradually eroding the concept of ownership. There has been a disconcerting trend of courts bypassing the default rules of property law; the rights acquired by consumers through purchase are defined instead by license agreements drafted by IP rights holders or retailers. In addition to license agreements, IP rights holders also employ technological methods such as Digital Rights Management (DRM) to restrict consumer use and protect their intellectual property. The matter is made worse by online retailers’ insufficient disclosure, which frequently uses words like “buy” or “own” to offer false promises of ownership. The loss of personal property rights has serious consequence not just for individual consumers; an important institutional actor – the public library – is also struggling to deal with the shift to digital collections and the corresponding restrictions imposed by IP rights holders. In response to these threats to ownership, the book explores legal as well as technological solutions, and presents a powerful argument for informed consumer choice in the digital marketplace.
Two encroachments, one long-standing, the other a product of the digital era, cramp the author's place in copyright today. First, most authors lack bargaining power; the real economic actors in the copyright system have long been the publishers and other exploiters to whom authors cede their rights. These actors may advance the fi gure of the author for the moral luster it lends their appeals to lawmakers, but then may promptly despoil the creators of whatever increased protections they may have garnered. Second, the advent of new technologies of creation and dissemination of works of authorship not only threatens traditional revenue models but also calls into question whatever artistic control the author may - or should - retain over her work. After reviewing these challenges, I will consider legal measures to protect authors from leonine contracts, as well as measures in the marketplace to obtain compensation for the exploitation of their rights, in order to assure authors better remuneration, and more power over the ways their works encounter the public. The author's place in the future of copyright (assuming copyright has a future) will not be assured until the full range of her interests, monetary and moral, receives both recognition and enforcement. Online micropayment and other systems for remunerating individual authors (including by means of collective licensing), albeit often embryonic, hold promise. But will these new means of remunerating authors (or for that matter older business models that, while often divesting authors of their rights, also often afforded them an income stream) remain viable in a digital environment in which paying for creativity increasingly seems an act of largesse? Most fundamentally, we need to appreciate authorship, and to recognize that a work in digital form is a thing of value, lest the old adage that "information" (meaning, works of authorship) "wants to be free" presage works of authorship that don't "want" to be created.