The redundancy of originality Part 2

This article first appeared in 1994 the International Review of Intellectual Property and Competition Law (published by the Max Planck Institute) and then appeared (in a slightly modified form) in the Entertainment Law Review in 1995.

Its basic thesis is that copyright is built on false foundations.  It looks in particular at the Feist Decision of the US Supreme court, which decided that collections of facts lack originality and so are not protected by copyright.

The article might be old, but it is still very relevant. Arguably, more relevant as technology continues to put copyright under strain.

Because of its length, I have split the article into two parts. The footnotes are in this part.

…………………………………….

 Originality as Creation

But even if creativity is a value judgement that pre-empts the market, not all forms of originality require creativity. Does creation-based originality also represent a value judgement and thereby usurp the market? The personality view of originality - the author's own intellectual creation - sets a lower threshold for propertisation, requiring only creation.68 So long as the work is created as opposed to appropriated, it is original. Typically, the personality view precludes works (or elements of works) from copyright for three main reasons: where there is no creation (facts); where, although there is a creation, there is no author (computer-generated works);69 where, although there is a creation, it is *IIC 681  not the claimant's own creation (out of copyright works).70 Does creation-based originality also represent a value judgement and thereby usurp the market?

Taking the last two categories first, it is clear that there is no a priori way of telling whether one of these works is original or not. A computer-generated work may be indistinguishable from an author-generated one: the latter is copyright, the former not. Similarly, exactly the same work is original if claimed by its author, but unoriginal if claimed by a subsequent appropriator once it is out of copyright. Since the works themselves are otherwise identical qua works, the only distinguishing criterion is the means of production. So that, whereas Inkasso-type originality pre-empts the market by distinguishing between meritorious (created) and unmeritorious (appropriated) works, this type of originality pre-empts the market by distinguishing between meritorious and unmeritorious means of production. But what could be more pointless? So long as the means of production is not proscribed for socio-moral reasons, its only relevant quality is cost-efficiency, and that is clearly the province of the market.

Inevitably, this form of originality is distortive. Instead of the free and equal play of market forces determining what is produced, how it is produced, by whom, for whom, copyright also distorts the structure of the market at its most fundamental level - production. The distortion is particularly clear in relation to computer-generated works, where it amounts to giving hand-made objects a different type of property to machine-made ones (a Luddite argument if ever there was one), but it applies equally to the subsequent appropriation of an out-of-copyright work. There is no a priori reason to believe that the author of work X (a bad novel) contributes more to society than the appropriator (and distributor) of out-of-copyright work Y (an important 13th-century manuscript).71

 *IIC 682  What about facts? Does personality's exclusion of facts from copyright also represent a value judgement and thereby usurp the market? Intuitively one would say, "Yes", if only because the whole ideology of copyright is reward-based, and reward entails the notion of the meritorious and the unmeritorious. For example, Thorne72 rejects copyright based merely on labour because, "Originality is a far better gauge of the value of the work"; the EC Commission in Magill had serious doubts about the validity of copyright in relation to "mere" facts;73 and in relation to sui generis protection for databases, WIPO was concerned that such protection "could … cover also fairly meagre collections which are not worthy of protection."74

But whether or not the personality view of originality represents a value judgement, it is clearly distortive. If we accept appropriation as a legitimate means of production in relation to pre-existing tangibles (and, necessarily, we must), then, logically, we should also do so in relation to pre-existing intangibles. If, in relation to physical property, appropriation of the pre-existing gives rise to a full right of property, unhampered by any test of originality, a system which refuses propertisation or relegates appropriated facts (and other unoriginal works)75 to a lesser form of property is as distortive, and as economically inadvisable, as propertising green goods differently from red ones.

Are physical property and intellectual property comparable in this way? Yes, they are: the point is not whether or not there are inherent differences between the physical and the non-physical (there are, but perhaps no greater than the differences between different types of physical), but whether these differences are relevant. Given that there is nothing inherently "propertyish" about anything at all, whether physical or *IIC 683  intellectual, relevant in this context means relevant to the purpose of propertisation, which is to make something tradeable on the market. And, once the weaknesses of the "non-rival consumptive" argument has been conceded, it is clear that both physical and intellectual goods need to be propertised to be effectively traded on the market. If anything, intellectual goods need property more.

 Originality as Labour

So much for the personality basis of originality. Does this mean that the labour basis should be retained? Not at all. The chief advantage of the labour view is precisely its laissez-faire nature. Given that there will, inevitably, always be some skill or labour or investment, the labour view rarely disqualifies a work from copyright. But the labour view's fatal flaw is illustrated by the following example. Imagine a work which has been produced with skill, labour or investment; according to the labour basis, it is original. Now take exactly the same work, but this time produced without any skill, labour or investment; according to common law originality, there is no copyright in such a work. This result is absurd. The most efficient producer, the one who has managed to reduce his costs to nil - or below whatever threshold has been set- receives no property, whereas the less efficient one does. This is hardly a viable economic policy.

As was pointed out in the introduction, common law copyright mixes up the notion of originality with that of a work. The two notions are, however, distinct. While there is some point in setting a threshold for the size of work that attracts copyright (it might not be practical, for example, to have copyright in a single word), there is no merit at all in having a test of originality.

 Patents

How can this be reconciled with patents? If originality is redundant, then surely this must also be true of novelty and inventive step? Not exactly. Novelty and inventiveness perform two functions: firstly, they screen inventions to make sure that they are not already available to the public (novelty); secondly, they carry out an assessment of the creativity of the invention (inventiveness).76 To the extent that inventive step propertises on grounds of value, it, like originality, distorts the market.77

 *IIC 684  But, even if they do represent distortions, novelty and inventiveness are not redundant. Patents differ from copyright in that they provide a property right which is so unusually wide, in particular because it excludes independent generation, that propertisation cannot be left to the market - a patent must be subject to a propertisation test.78 If valid patents were available to everyone who applied, irrespective of novelty or inventiveness, normal competition would be so distorted that our present system would become unworkable.

Copyright, on the other hand, is a normal property right. Like the property right in tangibles, it does not preclude independent generation. Precisely because of this, a propertisation test other than that of being a work is superfluous. The comparison between copyright and patent fails, not because of the subject matter to be propertised, but because of the nature of the property right itself. Despite what is commonly assumed, it is not the qualities of the thing to be propertised (creation or novelty/inventiveness) that determine the appropriate form of property (copyright or patent), but precisely the other way round. It is the nature of the property right which determines the things to which it applies. With patents, the property right is exceptional and so the subject matter of the property must be too. With copyright, however, since the property is of normal scope, there is no need to distinguish between exceptional and unexceptional works, and limiting copyright to original works simply restricts and distorts the market without any corresponding benefit.79

Part 5. Conclusions on Originality

Copyright, then, has succumbed to a dangerous series of non sequiturs: that because it confers a benefit, it is a reward; that because it is a reward, there is some point in propertising on grounds of value. It is a slippage that is all the more remarkable because it is so clearly not the case with tangibles; no-one would dispute that there should be as much (and the same) property in a good loaf of bread as a bad one, or that there is as much property in an ounce of gold as there is in a clod of earth.

Since there are no convincing justifications for keeping originality, the conclusion must be that it is anti-competitive. This may seem odd but, if *IIC 685  it does, it is because of the coincidence of two separate factors. Firstly, the relative youth of intellectual property has made it an object of suspicion and led to a test that goes beyond what is sensibly required. This misconception has not been helped by mistaken, and continuing, references to copyright as a monopoly right. Secondly, having mistakenly decided that there should be test, a romantic view of authorship was then adopted as the yardstick. This entailed that only those works which fell into the authorship mould were protected by copyright, and that expression was the only thing that copyright should protect. In a sense, the personality view of originality represents an attempt to acknowledge the exceptional nature of the paradigmatic copyright work. Unlike any other goods on the market, they have been created, not appropriated. Since these works are singular, it seems logical that they should be protected by a property regime which is equally singular. This then required copyright to be reserved for the paradigmatic works of copyright.

But this approach overlooked (at least) two things: firstly, that singular is a relative term, and that, while the property right offered by copyright might be singular as compared to works unprotected by copyright, it was remarkably un-singular when compared to property in tangibles. Secondly, that conceiving of copyright as a reward was not only circular, but ineffectual; it is not by keeping copyright as an exclusive club that the rewards to authors are increased or maintained. It is not because, under copyright with originality, authors of original works are better off than makers of non-original works that they are worse off under a copyright system which makes no distinction between the original and the unoriginal.

As for the practical effects of originality, these are overwhelmingly negative. Instead of the system of undistorted competition aimed for by most western economies (for example, Art. 3f of the Treaty of Rome calls for "the institution of a system ensuring that competition in the common market is not distorted"),80 originality distorts the market at its most fundamental level. Resources are diverted from sectors protected by lesser rights of property to those protected by fuller rights of property. Those sectors of the economy which have had to rely on unfair competition or similar, or which have had no property protection at all, will have become comparatively under-developed, and as a result, the intellectual world will have been under-exploited. It is strange to consider that, as we enter an age in which intellectual property will continue to grow in importance, copyright-based industries in the free market economies of *IIC 686  the West are still governed by a legal structure which belongs to a command economy.

Even more worrying is the point at which personality-based originality draws the line: aesthetic works should be protected by copyright, whereas functional works should be protected by lesser rights of property. That the useful is not as important as the aesthetic is a point clearly made in Feist: "Rural expended sufficient effort to make the white pages directory useful, but insufficient creativity to make it original".81 At its most extreme, as in Feist, this approach represents a point of view that is hostile to science. For the Supreme Court, scientific research is not intellectual labour, and scientists are mere reporters and copyists. This seems a philistine approach.82

The nature of economic claims such as these is that they are, to an extent, empirical and therefore hard to verify. But if the argument advanced in this article is right (viz. that the main effect of originality is to ensure that the unoriginal sectors of the economy remain underdeveloped), then one would expect an economy which protects its "unoriginal" works by copyright to be, in that sector at least, more developed than one that relies on unfair competition or similar forms of reduced property. In its Explanatory Memorandum to the DDD, the Commission points out that, of all the EC member states, the UK has the most developed data supply industry. The figures are impressive. In 1989, the UK had 30% to 50% of the online database and real time information market, the whole sector being worth about 2 billion ECU in the EC alone. Estimates made in 1990 suggested that, by 1992, the UK would have 50% of the online database market.83 Clearly, the UK dominates the European market - but why? In economic terms, most member states are substantially similar; nor is there any reason to believe that the UK has a particular predilection for facts, or that it is technologically more advanced. There is one major difference, however. While all the other member states protect facts (if at all) via doctrines of unfair competition,84 the UK is the only member state where - even if *IIC 687  for the wrong reasons - there is effective copyright protection for the facts themselves.85

Part 6. Copyright Without Originality

If, as seems advisable, we decide to abandon all forms of originality, what do we have left? Well, only those four86 things necessary for a functioning property system: the work, the mode of appropriation, the modes of misappropriation, and a set of antitrust rules.

Firstly, the work. If it is a type of work in which property is recognised (i.e. literary, dramatic, etc., as opposed to original literary, dramatic, etc.), then copyright can be claimed in it. It should also be clear from the previous sections that if the work is of the appropriate type, then no other criteria are relevant. Just as there is no point in pre-empting the market by refusing copyright on grounds of lack of creativity (or expression, or authorial presence), there is no point in refusing copyright either because of insufficient labour, or because the labour is of the wrong type. In all cases, given that the type of work is tradeable, it is for the market to decide what has value.

As for the scope of protection, this new-style copyright will protect whatever is left once the unappropriable matter has been (conceptually) removed.87 For works of expression, expression is protected. For works solely of fact, the facts are protected. For works containing both expression and fact, both are protected.88

 *IIC 688  Secondly, the mode of appropriation. Whereas originality conflates both propertisation and appropriation, a system without originality will require a more explicit form of appropriation. Some form of physical connection between the work and the person claiming it is required, if only to prevent someone claiming everything that has not yet been appropriated. It is proposed that pre-existing material should be appropriated in the same way as tangibles are - by being collected. Since, for copyright works, this means fixation, this changes little in existing law.

The third part of a functioning property system is the rule against misappropriation. This however, presumes that the thing (or version) appropriated already belongs to someone else, otherwise appropriation increases availability.

The fourth part is a set of antitrust rules. How will copyright without originality affect antitrust law? In the EC, because copyright is seen as a special form of property (viz. a reward), the ECJ has difficulty in characterising a dominant firm's exercise of copyright as abusive. How can a refusal to license be abusive, the reasoning goes, when the exclusionary right is precisely what copyright grants?89 But once it is accepted that copyright is no more a reward or incentive than physical property, this becomes much less problematic. Since all antitrust, whether of physical90 or intellectual property, is a restriction on exclusionary rights - and therefore diminishes the right holder's ability to maximise profits and appropriate a reward on the market - there is, prima facie, no reason to differentiate between antitrust in relation to copyright and antitrust in relation to physical property.91

 *IIC 689  These four elements - property, appropriation, misappropriation, and antitrust rules - are sufficient by themselves to provide a working property system:92 one which better parallels the property system for tangibles, and thereby allows both copyright and the property in tangibles to form part of a single unified system of property. If we are to have a society in which physical and intellectual resources have equal access to the market, which seems desirable, then it is necessary to have a legal system which propertises intellectual property in the same way as it propertises tangible property.93 Since patent and trademark law are clearly inappropriate, it has to be copyright, and this, in turn, means abandoning originality.

And why not? After all, it is not the means of production which make the product suitable for protection by copyright, but the fact that it is an intellectual product. Even if one accepts that the facts in a compilation are put together using non-intellectual labour, the resulting compilation is still an intellectual artefact and should be protected under the rules relating to intellectual property. The shift from protecting "the fruits of intellectual labor",94 as per Feist, to protecting the intellectual fruits of labour, is semantically small but economically significant, and requires a fundamental change in how we look at copyright. At the moment, the paradigmatic vision of copyright is one of exceptional property; not just exceptional in that some works must fail, but also exceptional in that the paradigmatic work is a great work. But a healthy intellectual property industry entails the exact opposite: that intellectual property should be commonplace. The appropriate vision of copyright is not one composed of many, great works because that, in the nature of things, will never be the case. The appropriate vision is one where, amongst the few great works, the typical products are useful, entertaining, modest and many; the intellectual equivalents of doorknobs, pulleys, nailbrushes and screwdrivers.

 B.A., LL.M; Barrister, London.

IIC 1994, 25(5), 658-689

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1.

Though English law is ambivalent on this point, treating facts in some works as copyright material (typically directories and other compilations), but tending to treat them as unprotected when contained in a work which contains substantial amounts of expression.

2.

Feist Publications Inc. v. Rural Telephone Service Co. Inc., 113 L. Ed. 2d 358 (1991).

3.

Amended proposal for a Council Directive on the Legal Protection of Databases, COM (93) final - SYN 393 (4th October 1993). Although the DDD will apply only to those facts incorporated in electronic databases, the EC Commission has made it clear that it would like to see its reasoning applied to all works of fact. Nor is the protection of the DDD limited to facts; paragraph 1.1 of the Particular Provisions of the Explanatory Memorandum (EM) refers to text, images, sounds, numbers, data, facts, pieces of information and the like.

4.

Propertisation, and the verb to propertise, are words I have coined to describe society's conferring of property. Appropriate tends to mean to makes one's own, not necessarily one's own property, and tends to presume that the appropriated thing pre-existed its appropriation. Commodify sits uneasily with land which, though property, is not usually considered a commodity.

5.

And often also requires "more than a de minimis quantum of creativity"; Feist, supra note 2, at 380 [1e, 4d, 10c]. The EC Commission is ambivalent on this point. Its definition of originality, the author's own intellectual creation, is intended to exclude aesthetic and qualitative considerations when assessing originality in relation to computer programs; see Recital 8 of the Software Directive (91/250/EEC). In the Magill case, on the other hand, it had difficulty accepting copyright in information precisely because of a perceived lack of aesthetic elements; Magill, BBC v. E C. Commission [1991] 4 CMLR 669.

6.

Throughout this article, the male pronoun is used for convenience.

7.

The facts in Feist were as follows. Rural was a telephone company with a statutory monopoly in its area. It published a telephone directory which was given out free, but which earned revenue by carrying advertising. Feist was a publishing house which made its money by producing alternative telephone directories, licensing the subscriber information from the phone companies: the Feist directories had the advantage that they covered larger areas than those supplied by the phone companies. Like Rural, Feist earned revenue by carrying advertising in its directories, and so both firms competed for the same advertising. Of the twelve phone companies approached by Feist for its directory, Rural was the only one that refused to license the subscriber information. Undeterred, Feist went ahead and copied Rural's directory. The case went to the Supreme Court on the question of whether Rural had copyright in its phone directory; this raised the larger issue of copyright in facts.

8.

Feist, supra note 2, at 370 [3d, 6], 369 [3c].

9.

The same definition is given in the Software Directive and in the DDD.

10.

Though all tangible property must be the result of a previous, if age-old, appropriation.

11.

Locke used a similar example to argue for a natural law right in property as a result of mixing labour. This article does not go so far: the only claim it makes is that most societies habitually, and wisely, concede property in these circumstances.

12.

Feist, supra note 2, at 370 [3d, 6].

13.

At least where the supply of fruit exceeds demand. Monopolisation is dealt with later.

14.

In some cases value may be added to the thing by adapting it, but this is not a prerequisite of propertisation.

15.

Or, because each trader would have to provide his own protection, it could only be sustained at a much higher cost. Propertisation delegates protection from the individual to the state, the latter being, generally, the cheaper alternative.

16.

PASHUKANIS, "The General Theory of Law and Marxism" in "Soviet Legal Philosophy" 111, 171-172 (J. Hazard ed. 1951), cited in ARMSTRONG, "From The Fetishism Of Commodities To The Regulated Market", 82 Northwestern University Law Review 79, 80.

17.

Feist, supra note 2, at 370 [3d, 6].

18.

The Supreme Court's notion of pre-existence applies a notion of the public domain stricter than anything to be found in patents. Novelty and inventiveness are tested against a standard that is much less strict than pre-existence in the UK, for example, "The state of the art in the case of an invention shall be taken to comprise all matter.. available to the public". UK Patents Act 1977, s. 2.2.

19.

For the sake of convenience, monopoly will be used synonymously with dominant position.

20.

The textbook example is that of two poets who independently compose the same poem. Both have copyright in their respective poems, even though both poems are identical.

21.

Feist, supra note 2, at 375 [9].

22.

Strangely, it seems that the Supreme Court in Feist may have misunderstood that copyright allows independent generation: this is suggested by its references to Rural being the first to gather the facts in question. "Rural may have been the first to discover and report … but this data does not owe its origin to Rural"; "the first person to find and report a particular fact has not created the fact" (italics added), supra note 2.

23.

The analysis by source and version is implicitly accepted by the DDD. "If the information in question is available from other sources, then there is no exclusive right in that information in favour of the creator of the database." Explanatory Memorandum, para. 3.2.8.

24.

Contra where the facts "cannot be independently created, collected or obtained from any other source"; DDD, Art. 8.1. It is worth noting that scientific facts will nearly always remain publicly accessible, though competition issues can arise even when there still exists a publicly available source.

25.

Access can be privileged because of lower costs (telephone directories, TV schedules) or because of time advantage in bringing the product to market (TV schedules, railway timetables); generally such advantages make entry into the market more difficult. In the antitrust Feist action, although it was open to Feist to canvass the information from the subscribers themselves, it was arguable that Rural's refusal to license was a refusal to supply under the Sherman Act. The argument succeeded at first instance, Rural Telephone Service Co. v. Feist Publications, 737 F. Supp. 610 (D.Kan. 1990), but failed on appeal, 957 F.2d 765 (10th Circuit 1992), primarily because the appellant failed to show actual harm to competition, as opposed to harm to competitors.

26.

Is there a difference between facts and information? Perhaps, but in this section the terms "facts" and "information" are used interchangeably.

27.

Magill, BBC v. E.C. Commission [1991] 4 CMLR 669. Magill, a magazine publisher, wanted to publish the BBC's and ITV's television programme schedules in its weekly magazines, but under the UK copyright rules the programme schedules were compilations and therefore copyright. The BBC and the ITV refused to license the TV schedules to Magill, mainly because to do so would prejudice the sales of the BBC's and ITV's weekly magazines. In the case before the Court of First Instance, the court held that the refusal to license was an abuse under Art. 86. The case is on appeal to the ECJ.

28.

See PATTISON, "The European Commission's Proposal on the Protection of Computer Databases", 4 EIPR 113 (1992).

29.

See "Positive-Sum Propertisation" later.

30.

This is not to say that antitrust control of monopoly is unproblematic, only that it is likely to provide a better result than control by originality.

31.

This article does not deal with the censorship potential of copyright. Nevertheless, it is worth pointing out that censorship is likely to affect a relatively small part of the information market, and copyright can provide a public interest defence.

32.

Feist, supra note 2, at 372 [3e, 7a].

33.

Though even this is not certain. If distributors can provide access cheaper than you can provide it yourself, a no-property approach in unlikely to increase dissemination. In practice, it is likely that producers and distributors would divert resources into nonlegal protection of their goods (e.g., security guards). This would increase the price of goods to the consumer, and so reduce their dissemination.

34.

HETTINGER, "Justifications for Intellectual Property", 1989 Philosophy & Public Affairs 21.

35.

Misleading in relation to both original and unoriginal subject matter. However, since even those who support the non-rival consumptive argument do not wish to see copyright refused to all literary works, a test must be devised to distinguish one from the other. This is the function of originality and is discussed later.

36.

Otherwise where the intellectual good is disseminated to consumers who would not have purchased the good at the market price, and where these consumers do not resell the good to consumers who are prepared to pay the market price. The practical possibilities for extensive price discrimination are, however, extremely limited.

37.

Though free, in this context, does not mean that there are no costs to the recipient. See the section on distribution, below.

38.

The other is the effectiveness of distribution without a system of property, discussed next.

39.

See also the example given at the end of Part 5.

40.

Soon to be life plus seventy years. The original proposal for the DDD put forward a term of 10 years. In the amended proposal, this has been increased to fifteen years.

41.

Plans for an integrated information market within the EC. Adopted by the Council, 26 July 1988, OJ L288/88, p. 39.

42.

Explanatory Memorandum, 3.2.7. Italics added.

43.

Regulation 1983/83, Recital 6. Although the regulation deals with territorial exclusivity for tangibles, its reasoning, being economic, also applies to other forms of exclusivity. Indeed, given the easily copied nature of intangibles, it applies a fortiori.

44.

To the extent that fact suppliers can prevent non-paying access to their facts, costs to those who do pay will generally increase. Non-property forms of protection increase costs and put the relevant industry at a competitive disadvantage. See, e g., the US CONTU Commission's recommendation of copyright as the appropriate regime for computer programs, inter alia because other regimes are ineffectual or impose too high a cost on society. Reported in KARJALA, "Copyright, Computer Software, and the New Protectionism", 28 Jurimetrics 33, 46 (1987).

45.

Will commercial copiers not bring the price down? In the long run, copiers are likely to put producers out of business: "[in the absence of copyright protection] the price of the book will eventually be bid down to the marginal cost of copying, with the unfortunate result that the book probably will not be produced in the first place, because the author and publisher will not be able to recover their costs of creating the work". LANDES & POSNER, "Economic Analysis of Copyright Law", 18 J. Legal Stud. 325, 328 (1989).

46.

See the example of the patents in the USSR given earlier, and the example discussed at the end of Part 5.

47.

Free flow of information arguments are often couched in terms of rights. But how seriously can one take a right which, if it is to confer any long term benefits to anyone, relies on those in whose favour it is supposed to operate not asserting it; ceteris paribus, the size of the information market (i.e. the stock of available information) is necessarily in inverse proportion to the number of people who successfully assert their legal right to take without paying.

48.

GINSBURG in "Creation And Commercial Value: Protection Of Works Of Information", 90 Columbia LR 1865, at 1916, argues for compulsory licensing on the basis that it may be in the compiler's financial interests not to license, and concludes that "Compulsory licensing is an appropriate means of reconciling the warring social goals of stimulating the production of information on the one hand, and ensuring its broadest dissemination on the other." This ignores the fact that the conflict referred to is not specific to facts; on the contrary, it is common to every good and every service, and is resolved every day by the price mechanism.

49.

In theory, at least.

50.

Though this effect is only visible when stocks begin to run out, as has already happened with land. It is worth bearing in mind that what makes the appropriation of physical goods sustainable in the long term is that we tend to throw away what we do not need. It is then recycled, though usually by nature and not by man, and eventually re-presents itself for appropriation.

51.

Is propertisation of facts a positive-sum game even when the source of the facts was once in the public domain but is no longer? There are two answers to this. Ex ante, propertisation of facts is positive sum because it encourages the supply of facts which would have been unavailable otherwise. But even ex post, propertisation in these circumstances switches between being a zero-sum game and a positive-sum game: at any moment in time, there are a finite stock of copyrights in existence, and the situation is a zero-sum game as with tangibles; however, at each expiry of a particular copyright all existing versions of that copyright become potentially independent copyrights, so that there is a positive (though still finite) increase in the propertisable stock. This analysis also applies to out of copyright works.

52.

An approach by positive/zero sum also suggests that the scope of protection granted should reflect how exclusive the property is. For example, with a form of property which allows independent generation, because the exclusion is small, the scope of protection could therefore be high: fair dealing defences and the limited term of property should be abolished. On the other hand, property in land, for example, is highly exclusionary because land forms part of a finite stock, and the scope of protection should be correspondingly low. There should be extensive rights of way and the term of property should be limited to, say, life plus 50 years. This approach is unlikely to be adopted.

53.

It is a general assumption of a market economy that property increases availability.

54.

Reward and incentive are flip sides of the same temporal coin. The hope of reward is the incentive.

55.

Feist, supra note 2, at 381 [2b].

56.

This is not to say that property cannot be used as a reward, but only that in a trading economy propertisors do not appropriate merely because they want the thing itself, they appropriate so that they can realise the value of the good on the market. It can be argued that the reward is the facility to appropriate value on the market, but this makes no difference. The argument is not whether copyright is a reward or not, but that lawyers, judges and lawmakers adopt reward-based reasoning in relation to copyright, but not in relation to physical goods.

57.

Feist, supra note 2, at 380 [1e, 4d, 10c]

58.

The first two, creativity and creation, are subsets of personality originality. They also represent the two elements of personality originality: creativity (either quality, or taste and judgement), and creation (non appropriation of pre-existing materials).

59.

Feist, supra note 2, at 380 [1e, 4d, 10d].

60.

Federal Supreme Court decision of 9 May 1985, 17 IIC 681 (1986) - Inkasso.

61.

The notion of intrinsic value is now largely discredited, at least in relation to intrinsic utility, because utility is subject to market forces in exactly the same way as market value. "A pound of bread may have great utility to a starving person, but to a baker who already possesses more than he can sell, an extra loaf is a nuisance." ARMSTRONG, supra note 16, at 91. Intrinsic utility is not the only possible sort of intrinsic value, but it is the most relevant since most jurisdictions have given up trying to assess intrinsic aesthetic value.

62.

"The application of such a condition may lead to subjective value judgements and, consequently, to legal uncertainty…." WIPO COMMITTEE OF GOVERNMENTAL EXPERTS ON THE PRINTED WORD, "Questions Concerning the Protection of Copyright in respect of the Printed Word", Part II, 14 September 1987, at para. 241.

63.

Looked at from the buyer's point of view, this makes intuitive sense. If I buy a computer program, I buy it because I hope or expect it to be suitable for my intended purpose. It is of no specific interest to me whether a court finds the program to be creative or non-creative. I will pay more or less money for the program depending on its worth to me; that, in turn, may or may not depend on how creative I think it is.

64.

ADAM SMITH, "The Wealth of Nations" (1776). Although Adam Smith's notion has subsequently been much qualified, his "basic arguments on the efficacy of free competition remain intact, a philosophical lodestar to nations relying upon a market system of economic organisation." SCHERER, "Industrial Market Structure and Economic Performance".

65.

Conversely, that someone has copied a work indicates that it has value.

66.

The de-propertisation of alcohol during US prohibition is an example of a proscribed thing, but property may also be refused where the means of production is objectionable. Pimping, for example, is an activity we choose to discourage by attacking the profit it produces. Nor need property be totally refused; guns and protected species are examples of things where property exists but is not allowed full play. Other reasons are that the thing is not sufficiently concrete to be traded, with ideas being the obvious example, or because non-propertisation is thought to lead to increased dissemination. Why the latter reason is not convincing was discussed above.

67.

Redundancy is different from distortion, conceptually at least, because if originality could exactly anticipate the behaviour of the market, there would be no distortion In practice it cannot, and so the two concepts coincide.

68.

Though some forms of creation originality require a minimal amount of creativity; see earlier.

69.

The personality view of computer-generated works is that copyright is only appropriate in relation to computer-aided works (where the computer is simply a tool), or in relation to situations where, although the work results from "human intellectual contributions, it is impossible to attribute separate authorship to individual contributors": WIPO, COMMITTEE OF EXPERTS, "Questions Concerning a Possible Protocol to the Berne Convention", Part I, at para. 53. Where the work is truly computer-generated, the work cannot be copyright because there is no human author and therefore no originality. Computer-generated works in this article refers to works created without human authors. Two situations spring to mind. Situation A: intelligent computers. Situation B a computer is hit by lightning during an electrical storm, and prints a best-seller.

70.

Can a subsequent appropriator assert copyright in respect of a work in which copyright has expired, or which pre-dates the copyright era? According to the personality view of copyright, clearly not; in theory the labour view should grant copyright if sufficient skill and labour was invested, but it is unlikely that the courts would adopt this result.

71.

Though, clearly, there is an argument that those who create something should receive a greater form of protection than those who appropriate from the public domain, tangible or intangible.

72.

THORNE, "Infringement of Database Compilations", 9 EIPR 331, 332 (1991).

73.

"…mere factual information in which no copyright could therefore subsist" (italics added). Magill, [1991] 4 CMLR 745, para. 29.

74.

WIPO, supra note 59, at para. 86.

75.

The general assumption is that, post-term, the work is in the public domain and therefore available to all. But, as was discussed earlier, this confuses public domain, as a legal concept, with the more practical notion of availability. One of the functions of property is to make available, and if we accept propertisation of public domain tangibles (e.g ocean fish) then, for the same reasons, we should also accept propertisation of public domain works. The result would be that, as copyright expires in a work, each existing copy can then be appropriated so as to give rise to a separate copyright; in turn, each second-time copyright would eventually expire, having spawned a number of appropriable copies. This scenario, though logical, appears odd: but if it does, it is solely because of the temporary nature of copyright. A more logical solution, and one which would contribute to correct distortions in the market, would be to grant an indefinite term of copyright, or alternatively, to reduce the term of physical property until it matched the term of copyright, i.e. life plus fifty years.

76.

It is arguable that inventiveness is not a value-based test, but only screens against appropriation of what is implicit in existing knowledge This makes no substantial difference to the argument.

77.

Though the difficulties of pre-empting the market are demonstrated by justifications of inventiveness such as "meeting long felt need".

78.

Though the test is not always fully applied at the moment the patent is granted.

79.

Even if there were to be a test for copyright, it makes no sense to discriminate on the basis of the means of production; in fact, externalities aside, it is hard to think of anything more irrelevant. The only appropriate criterion for a test would be the quality or inventiveness of the work (i.e. Inkasso, supra note 57), but that is the one criterion which, in the case of copyright or other normal property right, is superfluous.

80.

Article 36 of the Treaty of Rome, though dealing with restrictions on trade between Member States, makes it clear that definitions of industrial and commercial property can distort the market.

81.

Feist, supra note 2, at 380 [1c].

82.

And one endorsed by the many legal systems which distinguish between functional and artistic works, invariably to the prejudice of the former. It is no answer to say that patents protect science, because there is much scientific information, such as research data, which is neither an invention nor a patentable invention.

83.

Explanatory Memorandum, at paras. 2.1.5 and 2.2.2. France has the vast majority of the videotext market, largely due to the efforts of a state monopoly, the PTT, in installing a large user base.

84.

See HUGENHOLTZ, "Protection of Compilations of Facts in Germany and the Netherlands"; VIVANT, "Protection of Raw Data and Data Banks in France"; KARNELL, "The Nordic Catalogue Rule"; all in DOMMERING & HUGENHOLTZ (eds.), "Protecting Works of Fact" (Kluwer).

85.

It is arguable that economic statistics will always underestimate the real size of the information market in economies where facts are protected by non-copyright forms of protection, precisely because private consumers of facts take without paying and therefore do not show up on records. Are these uncounted users sufficient to offset the UK's preponderance? It seems unlikely.

86.

In fact, there are five things necessary for a functioning property system, and the fifth is the duration of property. Lack of space prevents fuller discussion of this issue.

87.

Generally, this means ideas. It is worth bearing in mind that abandoning originality has no effect on the status of ideas. If we take the EC Commission's definition of originality - the author's own intellectual creation - then, given a creative author, ideas are original. That ideas are not copyrightable when contained in works derives from a separate rule, not lack of originality. But if property in facts increases their dissemination, then surely that must also be true of ideas? This is probably the case; even if the supply of ideas is not price-elastic, their marketing and distribution almost certainly are. However, there may be other reasons for treating facts and ideas differently.

88.

Abandoning originality will mean that every author of a literary work will have copyright not only in the expression of the work, but in the words themselves as a compilation. But is this a problem? It is often said that originality restrains the monopolisation of the building blocks of language, such as words or alphabetic arrangements, but an analysis by source and version shows that this is unlikely. Probably more relevant is the definition of work, but discussion of this will have to await another occasion.

89.

See, e g., Volvo v. Veng [1989] 4 CMLR 122; 20 IIC 64 (1989). Magill, supra note 26, though under appeal, suggests that the Court of First Instance is moving away from this position. The analysis by specific subject matter of the right grew up originally to allow the ECJ to reconcile EC law with conflicting national law; as such it had some role to play in disguising the policy nature of the decisions which the ECJ had to take. Whether any such disguise is needed when considering the policy aspects of abuse of intellectual property rights is doubtful. The antitrust Feist case, Rural Telephone Service Co. v. Feist Publications, 957 F.2d 765 (10th Circuit 1992), shows that monopoly aspects of copyright can be competently handled without recourse to notions such as the specific subject matter of the right.

90.

For example, a cartel can be an agreement to dispose of tangible goods only on certain terms. Since, prima facie, the exclusionary right in those goods means the right to exclude on the terms I choose (or choose to agree), antitrust laws inevitably curtail rights in physical property. A fortiori where the right holder acts unilaterally, yet in neither case does the ECJ typically adopt an analysis by specific subject matter.

91.

Or, to put it another way, if the antitrust regulation of copyright is to be subject to more lenient criteria (i.e. favourable to the right holder) than the antitrust regulation of physical property, then how can this be justified? Possible justifications might be copyright's finite term, or the fact that copyright, unlike physical property, is a positive-sum appropriation (see earlier). Another possible justification is market failure, on the basis that copyright provides a large number of positive externalities, particularly in relation to economic growth. If this is the reason, then technological intellectual property (positive externalities in economic growth) should be regulated differently to nontechnological intellectual property, such as musical works, novels, and TV schedules (few positive externalities).

92.

Though, logically at least, property and misappropriation are probably the same.

93.

The distortion argument is about level pegging; it tells us nothing about where the optimal level of propertisation might be The level-pegging argument also applies to the scope of protection since the level of exclusion which applies to tangible property is the oldest, least likely to be changed, and since it seems to have worked well enough in the past, it is suggested that this is adopted for all types of work. This also suggests that the limited copyright term should be dropped in favour of an indefinite one, at least in those situations where latecomers are not disadvantaged as regards first-comers.

94.

Feist, supra note 2, at 369 [3b, 5a].