|"Not so", said Keith the Kitten, "copyright|
is surely a monopoly not an exclusive right ..."
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.
When trainees meet terminology: how should we describe copyright? Reviewed by Neil Wilkof on Friday, November 07, 2014 Rating: