Academic journal article Harvard Law Review

A Justification for Allowing Fragmentation in Copyright

Academic journal article Harvard Law Review

A Justification for Allowing Fragmentation in Copyright

Article excerpt

Imagine a writer who after a flash of inspiration conceives of a poem and commits it to paper. Copyright law grants the author a standard bundle of rights--rights to copy, create derivatives of, distribute, publicly perform, and publicly display the poem. (1) Before 1976, the writer could have transferred these rights only by transferring the full bundle; (2) she could not, for instance, have sold to separate buyers the rights to print and to perform the poem. (3) As part of a comprehensive copyright revision in 1976, (4) however, Congress allowed owners to assign individual rights or subdivisions thereof. (5) A poet, for example, may now sell separately the rights to print, perform, and create derivative works based on her poem. In real property law, by contrast, the numerus clausus principle limits the types, though not the number, of packages into which owners may divide their rights. (6)

It might seem odd that copyright owners are freer to fragment their rights than are landowners. Indeed, Professor Molly Van Houweling contends that copyright law is too permissive of fragmentation. (7) Professors Michael Heller, (8) Thomas Merrill, and Henry Smith (9) argue against free fragmentation generally in ways that apply especially to copyright. Finally, Professors Julie Cohen, (10) Lawrence Lessig, (11) and Smith (12) advance theories that can be extended to oppose fragmentation. In short, the literature seems opposed to the law as it stands.

This Note defends the law's acceptance of fragmentation. The analysis centers on the two characteristics of copyrighted works with the greatest implications for fragmentation: first, the uncertain range of works' potential uses and, second, the high number and interactivity of these uses. For each of the characteristics, the Note seeks to build the strongest case against allowing fragmentation and then to demonstrate why fragmentation should be allowed. The argument makes three broad moves: First, because works vary in their optimal structures, mandating one uniform structure generates "frustration costs" (13) by frustrating owners' ability to pursue efficient uses. Second, however much fragmentation increases the "measurement costs" (14) third parties face in determining the boundaries of property rights, this effect will likely be outweighed by averted frustration costs. Third, owners are better placed than government is to determine works' structures. Finally, the Note argues that to the extent fragmentation imposes costs, a "safety valve" protecting against excessive costs exists in the first sale doctrine (15) and in the prohibition of copyright servitudes. (16)

The Note proceeds in three parts. Part I compares how real property and copyright law treat fragmentation. Parts II and III seek to justify the law's allowance of fragmentation, Part II with regard to works' uncertainty and Part III with regard to their high number of uses and interactions. A brief conclusion follows.

I. LEGAL BACKGROUND

A. Real Property

Landowners are constrained in the types of packages into which they can divide their rights. This constraint operates through the numerus clausus--"a deeply entrenched assumption of the common-law system of property rights" mandating that courts recognize only a small set of established property forms. (17) For example, present possessory interests in land are generally limited to the fee simple absolute, defeasible fee simple, life estate, and lease. (18) Courts have traditionally refused to create new property categories, instead forcing any nonconforming property interest into an enumerated form. (19) Proffered justifications for the numerus clausus include the inherent value of the forms' substantive content, (20) the value of rules around which expectations have settled, (21) and various theories between these extremes. (22)

B. Copyright

When Congress overhauled copyright law in 1976, it allowed owners to fragment their bundles of rights freely. …

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