Photo by Nima Izadi on Unsplash

Professor Jessica Litman’s recent paper, What We Don’t See When We See Copyright as Property, analyzes how the legal concept of copyright as property tends to reflect broader societal imbalances in wealth and bargaining power.

Although this legal construct might seem to have little bearing on the day-to-day work of earning a living as an author, its effects are keenly felt—particularly when it comes to authors’ paychecks. The article discusses how property rights (known as “alienable rights,” meaning that they can be taken away or transferred, as opposed to “inalienable rights” such as civil rights or human rights) are often construed at the expense of individuals. As Litman writes, “[f]or 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 maximize their own revenue while shrinking their payouts to authors.”

The article examines historic legislation, including the British Statute of Anne (1710) and the American Dawes Act (1887), in order to explore how the framing of rights as alienable property rights tends to favor the powerful over the disenfranchised. Litman speculates on why authors are often excluded from realizing the benefits of their creative work, and concludes with some suggestions on how the issue of copyright-as-property can be framed constructively to bring about change so that authors have a better chance at receiving their fair share of copyright benefits.

Jessica Litman is John F. Nickoll Professor of Law and Professor of Information at the University of Michigan. This paper was published in May 2018 as part of Michigan’s Law & Economics Research Paper Series. The full text is available on SSRN.