Abandonment, Copyright and Orphaned Works: What Does It Mean to Take the Proprietary Nature of Intellectual Property Rights Seriously?

Article excerpt

[For many years there was doubt as to whether personal property could be abandoned In more recent times, however, the existence of a doctrine of abandonment has been solidifying in relation to chattels. In this article the authors suggest that copyright works can also be abandoned This conclusion has significant implications for cultural institutions and other users struggling to deal with so-called 'orphaned works'. More generally, the authors suggest that recognising that abandonment of copyright is possible has repercussions for how we think about intellectual properly rights and, in particular, should cause us to look more closely at other doctrines within the law of personal property that might limit intellectual property's reach.]


I  Introduction
II Abandonment
      A  Abandonment and Choses in Possession
      B  Abandonment and Copyright
      C  Objections to Abandonment of Copyright
            1 Johnson's Objections
            2 Other Objections
III Determining Abandonment and Its Application to Orphaned Works
IV  Conclusion: Propertising Intellectual Property


Intellectual property has become a highly controversial and politicised topic, with recent expansions of its boundaries being met with fierce criticism. The resulting disagreements have been played out by reference to economics, moral philosophy, and theories of authorship and scientific innovation. In addition, however, there has been a linguistic component to these debates, one that has revolved around the question of whether intellectual 'property' rights are really a species of property at all. Advocates of expansive rights frequently insist that the proprietary nature of intellectual property needs to be afforded respect. (1) Conversely, one complaint that is commonly voiced by those who believe that intellectual property rights often overreach is that uncritical acceptance of the rubric of property has facilitated the expansion of intellectual property's domain. (2) In these debates one finds an echo of arguments over language that can be traced back to the mid 19th century and before. There was, for example, a linguistic dimension to arguments over copyright term extension in the 1830s and '40s in the United Kingdom ('UK'), with opponents of term extension preferring the language of 'monopoly' to that of 'property' when describing copyright. (3)

This article does not seek to answer the question of whether copyright and other forms of intellectual property can fairly be described as property. This question has been endlessly debated and it is doubtful whether anything less than a book-length study could add meaningfully to the existing literature. Still more importantly, however, we are of the view that this debate is in danger of missing the point. We are positioned amongst those who believe that intellectual property rights often overreach. Many of this group are quick to insist that the property label is inapt, and argue that to concede the label of property is to give ground without a fight to those who wish to see the law's boundaries expanded. But to our mind this position is both unwise and ultimately unconvincing. It is unwise because, for better or for worse, the idea that intellectual property rights are a species of property is one that has become firmly embedded in legal, political and (to some degree) public discourse. (4) As a consequence, to insist that intellectual property rights are not proprietary can appear unworldly and is to put oneself on the wrong side of a widely shared understanding. It is unconvincing because the set of legally protected interests that we now group under the banner of 'intellectual property' have long been regarded as proprietary in nature--in the case of copyright the argument over language had almost certainly been lost by the 1830s (5)--and it seems odd to suggest that it is only now that notions of property have helped ease the acceptance of stronger rights. …