- What's Wrong with Copying?
In What's Wrong with Copying?, Abraham Drassinower sets out to offer a non-instrumental account of copyright law using a core insight developed by Immanuel Kant in a lesser-known essay.1 Whereas modern copyright law focuses on the protected expression – that is, the 'work,' as the subject of a property right (a res), Drassinower argues that the work is in reality an 'act,' or what Kant called an opus (8). In this conception, copyright law is less about protecting an author's market for the work or preserving the author's incentive to create. It is instead a product of the law's immanent focus on preserving the autonomy and dignity of the author to speak (or not speak) in her own words, whenever, however, and wherever she may choose (54–84).
The book's claim is a bold one and for two interrelated reasons. First, its anti-instrumentalism runs contrary to decades of copyright thinking in the Anglo-American world, where the first copyright statute is often interpreted as itself referencing an instrumental purpose when it described itself as existing 'for the encouragement of learning.'2 Copyright's core purpose is commonly accepted as lying in the inducement of creative production, a purpose that is routinely derived from sources and ideas external to the doctrine itself. Second and relatedly, its methodology – of deriving the logic and purpose of the institution from within – is viewed with deep suspicion in the copyright literature, given its common association with efforts to maintain the status quo.
Drassinower's exegesis of his theory does a splendid job of developing its core components very carefully. From the idea that a work is a speech act, it moves to articulating a normative understanding of copyright's 'originality' requirement, which it sees as inhering in the recognition that the law does not just tolerate 'independent creation' but, instead, affirmatively encourages it (57–66). To Drassinower, it is for this very reason that the originality standard revolves around the seemingly low threshold of independent creation. Originality is, to Drassinower, merely [End Page 411] about 'speaking in one's words,' which the various formulations of the formal doctrine capture in part but tend to gloss over (62).
Yet, independent creation does much more for Drassinower. Indeed, it might be seen as the organizing principle for copyright law, emanating from the need to affirm an author's dignity as a speaker and the dignity of other speakers to speak in their own words (63–4). Independent creation explains copyright law's bedrock focus on the distinction between ideas and expression, a boundary that case law in the area has had a difficult time policing with analytical precision (66–73). To Drassinower, copyright's exclusion of ideas from the scope of its protection emanates from its belief that others – that is, other authors – should make active use of ideas contained in protected expression in order to generate their own speech (73). The 'equal dignity' of authors motivates the dichotomy. The book then uses this principle to explain the court's well-known case of Baker v Selden,3 the true meaning of which scholars have debated for some time now (72–3). In the court's somewhat cryptic distinction between 'copying for use' and 'copying for explanation,' Drassinower finds an implicit affirmation of his theory.
Authorial autonomy and equality therefore emerge as the twin pillars of the account. Copyright law treats the act of copying – under limited circumstances – as wrongful because it amounts to an act of 'compelled speech,' invading the autonomy of the author to determine when, whether, and how to speak (111–13). Copyright infringement bears no connection to ownership, free-riding, misrepresentation, misattribution, or invasion of privacy but is, instead, about authorial autonomy (115–44). Drassinower explicates this through an extensive 'homology' to the landmark property law case of Pierson v Post, to conclude that independent creation is to copyright what first possession is to property law (122–34).4
The homology, while carefully constructed, does come across as a little...