From distribution to dialogue: remarks on the concept of balance in Copyright Law
| Autor | Abraham Drassinower |
| Páginas | 133-149 |
133
FROM DISTRIBUTION TO DIALOGUE
DERECHO DE AUTOR
From distribution to dialogue: remarks on the
concept of balance in Copyright Law
ABRAHAM DRASSINOWER*
Summary: I. Introduction: The public domain as a subject matter problem. II. The role of balance. III. The
insufficiency of balance. IV. The misappropriation of value and the value of authorship. V. The
insufficiency of (mere) value. VI. The poverty of the public domain as (mere) value. VII. Originality
and the work as a communicative act. VIII. Fair dealing (or fair use) for the purpose of criticism as
a communicative act. IX. The purpose of copyright and the self-constitutive authority of authorship.
X. Concluding remarks: copyright as dialogue.
I. INTRODUCTION: THE PUBLIC DOMAIN AS A SUBJECT MATTER PROBLEM
Few propositions are more frequently asserted in contemporary copyright discus-
sion than the proposition that copyright is a balance between authors and users —a
balance (as some like to say) between the incentive to create and the imperative to
disseminate works of authorship—. In spite of the pervasive, recurrent, and vigorous
debate about copyright, there appears to be widespread agreement that copyright is
structured as a balance1. The debate is not so much about the appropriateness of the
concept of balance, but rather about how that balance is to be struck, about what the
legitimate scope of the author‘s right of exclusion is or ought to be. The consensus
is such that anyone unwilling to rely on the seemingly all-pervasive concept of the
copyright balance is bound to succumb to the sense that, while forceful and animated,
the disagreements about scope are but skirmishes within a basically shared playing
field.
I want to argue that the concept of balance can not support the weight it is asked to bear
in copyright jurisprudence. Boldly stated, my point is that we should think of copyright less
as a “balance” between authors and users than as a “dialogue” between authors and users.
“Dialogue” is a metaphor more appropriate than “balance” to structure our interpretation
of Copyright Law and its purpose.
* Originalmente publicado en el Journal of Corporation Law. Vol 34, Nº 4, 2009. Se reproduce con autori-
zación expresa del autor.
1 See, e.g., William Fisher, Theories of Intellectual Property, in New Essays in the Legal and Political Theory
of Property 168, 168–69 (Stephen Munzer ed., 2001) (describing optimal balance as the most popular
approach to Intellectual Property).
Anuario Andino de Derechos Intelectuales.
Año VI - N.º 6. Lima, 2010
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ANUARIO ANDINO DE DERECHOS INTELECTUALES
DERECHO DE AUTOR
To begin with, I will develop the proposition that the concept of balance can not
do what it is asked to do in copyright jurisprudence. I will do that through a discussion
of the landmark rejections of the “sweat of the brow” standard of originality in favour
of a “skill and judgment” standard in Canada2, and a “creativity” standard in the United
States3. I will argue that, to the extent that the doctrinal movement away from the sweat of
the brow standard is formulated as a matter of the copyright balance, it is fated to remain
unjustified, incomplete, and counterproductive. It is fated to remain unjustified because
nothing in the concept of balance requires a rejection of the sweat of the brow standard.
It is fated to remain incomplete because the concept of balance can not ground a vision of
the purpose of copyright that is a true alternative to the vision instantiated in and through
the sweat of the brow standard. And it is fated to remain counterproductive because, in the
absence of adequate justification, the doctrinal shift obscures and precludes the possibility
of an alternative vision of the purpose of copyright: a vision that would be conducive to
the elucidation of the constitutive role of the public domain —and hence of users— in
copyright jurisprudence.
By way of conclusion, I will suggest the viability of “dialogue” (as distinct from
“balance”) as a structuring metaphor. I will present this alternative through an interpreta-
tion of the concept of originality and the defense of independent creation in copyright
doctrine. My point is that grasping authors and users as aspects of a single system requires
retrieving from within well-settled copyright doctrine a view of the work of authorship as
a communicative act. As I have argued elsewhere4, once grasped as a communicative act,
the work of authorship invites and elicits the responses that Copyright Law contemplates
and authorizes through the defense of fair dealing in Canada or fair use in the U.S. (or,
more precisely, through certain aspects of the defense, in particular fair dealing or fair
use for the purpose of criticism). The concept of the work as a communicative act thus
lays the groundwork for an integrative construal of authors and users as participants in an
ongoing dialogue.
The recurrent debate between pro-author and pro-user renditions of the copyright
balance is basically a debate about copyright scope. It is a skirmish about parceling out
the field of copyright subject matter. Yet this field itself remains largely untheorized. It
remains assumed as the prize to be won in the debate, rather than examined critically as
a substantive and contested aspect of it. My purpose in this paper is twofold: to remind
us that subject matter questions are prior to scope questions, and to demonstrate that, at
the very least in one of its fundamental determinations, the public domain is best grasped
through the lens of subject matter rather than scope. The view of copyright subject matter
—i.e. the work— as an instance of communication between persons invokes and evokes an
image of the public domain, not as a weight to be placed on a balance, but as an irreducible
site of, and condition for, dialogue.
2 See CCH Canadian Ltd. v. Law Soc‘y of Upper Can., [2004] 1 S.C.R. 339 (Can.).
3 See Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 358 (1991).
4 Abraham Drassinower. Authorship as Public Address: On the Specificity of Copyright vi s-à-vis Patent
and Trade-Mark, 2008 Mich. St. L. Rev. 199 [hereinafter Authorship as Public Address].
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