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Friday, 7 November 2014

When trainees meet terminology: how should we describe copyright?

"Not so", said Keith the Kitten, "copyright
is surely a monopoly not an exclusive right ..."
Several times each year, this Kat is called upon to give an overview of IP to the new intake of trainee kittens. Truth be told, the task has become ever more challenging as increasing numbers of such legal kittens come armed with one or more courses on IP. While the saving grace is that IP in the Academy can be a lot different than a trainee overview of the topic, the task of staying one-step ahead of these well-trained kittens can still sometimes be daunting. A prime example occurred recently during my last trainee presentation, as I was covering the copyright portion. At some point I described copyright as a unique type of “exclusive” right. “Not so”, intervened one of the trainees. “I had a course on the subject, and we were taught that copyright is a monopoly right.” While I deflected the issue (“let’s talk about it after the presentation”—which we did), the comment got me to thinking once again: how should we be describing copyright; indeed, should be seeking to describe it at all in such a fashion?

Let’s begin with copyright as a monopoly right. In this Kat’s mind, a monopoly is simply an undesirable economic situation, which is characterized by a lack of economic competition to produce a specific good or service as well as a lack of a viable substitute good (indeed, this Kat’s first field of practice in the law was antitrust/competition law, until President Reagan largely neutered it in the 1980s.) Monopolies are bad economic entities, and we tolerate them only at the margin, such in the context of a so-called “natural monopoly". How copyright fits into this notion is, for this Kat, a mystery.

Better, in this Kat’s view, is the characterization of copyright as an “exclusive” right. Within the context of the nature of copyright, this would seem to mean that if I have created an original work, then the rights in that work are “exclusive” to me. But, upon reflection, this Kat can ask—is that just so? After all, independent creation of the identical work will confer upon the second author an equal exclusive right, with the result that there will be two owners of the same ultimate work, each of which has an exclusive right. For two or more entities to each enjoy an exclusive right in the same work (“same” not in the sense that both works derive from a single act of creation but rather in the sense that both works are identical in outcome) would seem to distort the meaning of the term. When I grant an exclusive licence (not “sole” licence) to a third party to use my copyright, as between the two parties to the licence, only one of which enjoys the exclusive right of use as described in the agreement. The notion of “exclusivity” in this context seems even more in line with the meaning of the term (“unable to exist or be true if something else exists or is true excluding or not admitting other things”). That said, this Kat remains of the view that describing copyright generally as an exclusive right is closer to the mark than describing it as a monopoly right.

But this raises a more fundamental question—why the need to use a descriptive term at all, if it is not fully applicable? If one describes the right as a “monopoly”, presumably he means what he says. If copyright does not really meet the test for “monopoly”, then why employ the term?  After all, we are in the realm of law and not literature, only the latter of which countenances literary licence. Even the use of the term “exclusive” may be inadequate, although in this Kat’s view, far less so. Perhaps, at the end of the day, this Kat should simply opt for the description of copyright as a statutory right defined by terms of the statutory enactment—and no more.

20 comments:

Richard McD Bridge said...

Wilkof is of course right even if he does not go far enough. Since copyright is only infringed by copying it is not a monopoly. Patents and trade marks and registered desings, which may be infringed without copying, are monopolies. If courses are teaching the opposite, the teachers need to be properly taught!

Michael Factor said...

I agree with Neil and think Copyright is better termed an exclusive right.

Better, it is a right to exclude.

To my mind a monopoly provides a market sector to one supplier. The rationale for the rediculously long copyright terms is that what is protected is very narrow. Others can purchase, use, benefit from the creative work but cannot copy it or give a public performance.

There are alternatives to copyright protected products. There is another book, film or piece of music that may be enjoyed instead of the copyright work.

A patent prevents others from using or benefiting in any way without taking out some sort of license.

If I own a piece of real estate I may be the only person who can build on it, but that doesn't make it a monopoly. One doesn't talk about having a monopoly for one apartment. A film monopoly may exist if one entity owns all Tv stations or all cinemas. One does not have a monopoly in a film.

Anonymous said...

My understanding was that a patent is a monopoly right, with the use it or lose it provisions of s. 48, whereas for copyright, there is no obligation to use your right, hence exclusive.

Francis Davey said...

As I think I have said on this blog before, "monopoly" is used by economists in a rather more flexible way than it appears to be used by lawyers (intellectual property lawyers anyway). A monopoly is a market in which there is only one seller (or in some cases buyer) for a good.

Now in that sense, copyright self-evidently creates a monopoly. If I want (say) the right to print copies of a Harry Potter novel then I can only buy that right from one person (as far as I am aware - clearly some copyright works end up being oligopolies because of multiple licence routes - that's a complicating factor). That person can set a monopoly price or simply refuse to sell their product and there is nothing I can do about it other than refuse to buy (at that price).

Whether this is a bad thing is quite another matter. "Monopoly" is not code for "bad" in the economist's lexicon.

Now you might object that there are *other* books I could print that aren't Harry Potter. Just so. JKR does not have a monopoly over books but she does over her own works. Economists are entirely happy with this idea. Most goods are subject to substitution effects. I might buy bread instead of potatoes. That doesn't stop someone from obtaining a monopoly on potatoes, it just means that the demand curve in the potato market is affected by the possibility of substitution, so that the monopolist may find their ability to make monopoly profits constrained.

In fact the normal state of most goods traded on the high street is what economists would call "monopolistic competition". Only Coke can sell Coca-Cola (they have a monopoly) but consumers can choose to buy other Colas. Coke is therefore interested in making people use its market (where it has a monopoly) and so spends a considerable amount on the brand image of its product so as to reduce substitution effects.

Hence, copyright in (say) a detective novel is a very typical monopolistic competitive situation.

How exactly there is a difference between an "exclusive right" and a monopoly eludes me. It seems to be a distinction without a difference, perhaps influenced by negative connotations that are felt by the use of the word monopoly?

The 1988 Act describes copyright as a form of personal property the owner of which has a number of "exclusive right"s. It seems to me that is a better way to think about it. I.e. property with an attached bundle of rights. Much as the owner of land might have attached rights (of way or common for instance).

Anonymous said...

Anonymous @ 11:43,

Can you explain this "use it or lose it" concept to this American?

Here, we have no such notion (nor could we, given that our law allows improvement patents on others' own patented inventions that can readily be seen to prevent actual use.

Anonymous said...

S. 48 provides for compulsory licensing of the patent if certain conditions are fulfilled such that the right no longer is a monopoly right. In TM, lack of use leaves you open to a revocation action.

Anonymous said...

Seems to me it all depends on one's perspective


I have a valuable incentive to my creativity.

You have a right to exclude.

He has an unfortunate monopoly, with insufficient exceptions and fair-use provisions.

Anonymous said...

Richard Bridge is right - the clue is in the name, copyright gives the right to copy (broadly defined) but not a monopoly right as someone else can legitimately come up with the same thing independently (leaving aside the difficulty of proving that...) and market it in competition with the earlier work.

Anonymous said...

Ah thanks - no such thing as compulsory licencing here in the States.

Rather defeats the notion of "exclusive right," eh?

Ron said...

I seem to recall that there are some countries where failure to work your invention is a ground for revocation.

"Public domain" and "Published" are two further words which are often used as synonyms in the UK, especially in the media. Moreover, it is often overlooked that "Published" has different meanings under UK law in the respective contexts of Patents and Copyright.

Anonymous said...

Anonymous 15:01 - part of the point of the patent system is that inventions are not just encouraged to be made, but they are encouraged to be made available for the public to buy. If you have a patent but don't make the product or let anyone else do so, you are not really playing the game. One of the reasons for frequent renewal fees is similar, so that anyone not making good use of their patent is encouraged to give it up and make the invention free for others.

Anonymous said...

Anonymous @ 19:49,

Your view is most definitely NOT the view for US Jurisprudence.

There is a still controlling 1908 Supreme Court case on the matter - the Quid Pro Quo exists for - and the nature of the patent right is - a purely negative right.

Your "part of the point" is simply not true to the extent that you do not recognize this nature of patent law.

You suffer from a "must-make" view that is but a shallow reflection on what patents are.

There are many reasons for playing the game. Actual products are by no means required to be in play for all of those reasons.

MaxDrei said...

I read above that the patent law of the USA is devoid of any "compulsory licensing" provision. I recall a scare there, involving Anthrax and the need to procure vaccine from, who was it, Bayer. Until Bayer agreed a more modest price, the US Government was going to circumvent the Bayer exclusive rights anyway.

But how was it going to do that, given the Absence of the Provision of UK patent law that Minister of Health Enoch Powell used in the 1950's?

Compulsory purchase? National interest? What was the statutory provision in America gave it the right to over-ride Bayer's exclusive rights? Anybody recall?

Anonymous said...

MaxDrei,

See 28 USC 1948

Also, you might Google the term "us patent law compulsory license" and find the link to the PowerPoint presentation created by Wyeth that discusses the topic, written by:
M. ANDREA RYAN
IMMEDIATE PAST PRESIDENT, AIPLA
ASSISTANT GENERAL COUNSEL, PATENTS
WYETH/U.S.A.

Anonymous said...

Not even a "thank you" from MaxDrei?

Is the situation in the States now understood, Max?

MaxDrei said...

I'm perplexed. One of the Anonymice above tells me that there is:

"...no such thing as compulsory licencing here in the States"

Note the use of "here" and the correct US spelling of the verb "licencing". I take from this that the commenter is based in the USA.

Meanwhile, another Anonymouse demands a "Thank You" for reporting that over there, in "the States", there is compulsory licensing.

So, in answer to their question: No, the situation in the USA is not yet "understood". I'm just very thankful that it is not my job, to advise clients what the law is in the USA.

Perhaps the one anonymouse could take up the cudgels with the other anonymouse and slug it out with each other, till they have agreed with each other what the law is over there in the USA?

Anonymous said...

Max, if you had bothered to read the article referred to, you would have learnt that the anthrax story was about government use of the invention which would not require a licence.

Anonymous said...

There is no such word as "licencing". It is a typo.

MaxDrei said...

I have to say thanks for the tip to read the Ryan ppt and the correction of my misapprehension about spelling in US English.

I gather that (under particular circumstances) the US Government has licence to use a patented invention, without first procuring a licence from the patent owner, and whether the powner consents or not. Bit like the "Crown User" provisions in the UK then, which I alluded to already.

The spelling point: In England, the verb takes the s and the noun the c. Thus: I practise patent law in a law practice. In the USA, I knew that the noun form uses the s. In the verb is it also an s? Does one "practise" or "practice" patent law there?

Anonymous said...

Classic.

Fretting over spelling (on the internet) while totally ignoring the answer provided, and then "thanking" for the "tip" to read the answer.

Does this make anyone else's head spin in bewilderment?

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