Adverse Possession of Copyright: A Proposal to Complete Copyright's Unification with Property Law

By Arrett, Michael James | Journal of Corporation Law, Fall 2005 | Go to article overview

Adverse Possession of Copyright: A Proposal to Complete Copyright's Unification with Property Law


Arrett, Michael James, Journal of Corporation Law


I. INTRODUCTION

By virtue of the Constitution, Congress is empowered to secure for intellectual creators an economic entitlement of limited duration in their works.1 Congress has exercised this power since enacting the first federal copyright statute in 1790.2 Despite existing in one form or another for over 200 years, however, American federal copyright law enters the 21st century at the center of a fierce, though relatively silent, controversy centered on the scope of protection enjoyed by copyright owners.

The root cause of this controversy is technological development: namely, the cheap creative power of digital technology coupled with the ease of content distribution provided by the Internet.3 Naturally, this change has threatened the bottom line of content distributors and copyright owners with businesses built on traditional retail distribution.4

In the face of this technological change, and the distributors' resulting insecurity, Congress has sought to strengthen the copyright owners' position.5 Two statutes enacted in 1998, the Copyright Term Extension Act6 and the Digital Millennium Copyright Act,7 go a long way toward accomplishing this goal by extending the duration of protection by 20 years and criminalizing efforts to bypass technological protections on copyrighted material.8

Critics of an expanded copyright regime point out that "more copyright protection is not always better."9 Overprotection stifles creativity by removing too much expression from the public domain in the name of security for copyright owners.10 Further, Overprotection runs the risk of empowering copyright owners "to bar expression that they do not like."11 At the core, however, critics are uncomfortable with what they see as a recent tendency of the law to view copyright as a form of property rather than a statutory privilege.12 No doubt, these critics believe that a return to what they perceive as the "traditional" view of copyright, as a statutory privilege rather than as property, would solve many problems.l3

This Note argues that the inequities present in copyright law do not stem from it tracking "standard" property law too closely, but rather that the distance separating copyright from property is a cause of inequity. To address this problem, this Note advocates the judicial adaptation of the doctrine of adverse possession to copyright. Part II of this Note traces the history of viewing copyright as a form of property. This Note introduces the unique qualities of an intangible form of property, such as copyright, and reconciles these qualities with tangible property. The discussion of copyright as property concludes with a brief review of its treatment by various American legal institutions.

Part III of this Note explains the doctrine of adverse possession as well as the philosophies and theory underlying it. This section also introduces and outlines the case of Zuill v. Shanahan14 in which the court expressed approval for applying a statute of limitations to copyright co-ownership claims.15 Following this, Part III proposes an adaptation of adverse possession to copyright, working through the traditional elements of adverse possession and illustrating their function in copyright using the fact pattern of Zuill. This Note concludes in Parts IV and V by urging judicial acceptance of adverse possession as a valid claim in the context of copyright.

II. BACKGROUND

A. The Historical Roots of Copyright as Property

The notion of copyright as a form of property is "deeply rooted in Anglo-American law."16 As early as 567 A.D., the Irish King Diarmed employed the theory to assist him in resolving a controversy over a copied psalm book.l7 Treating the copied book like the offspring of a cow, the King ruled that any copies derived from the original belonged to the owner of the original.18

Despite the allure of this tale, it is certain that King Diarmed did not consider the implications of his ruling on copyright law. …

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