On March 11, the IP Osgoode Speaks Series hosted University of Toronto’s Professor Abraham Drassinower to present his new book, What’s Wrong with Copying? His presentation was followed with comments by Professor Bita Amani from Queen’s University, as well as Osgoode’s own Professor Carys Craig; each of whom offered insightful critiques of Drassinower’s book.
Abraham Drassinower – A theory of copyright based on copyright law
Drassinower proposed a theory of copyright to challenge the dominant instrumentalist paradigm, in which copyright’s purpose is to catalyze the creation and dissemination of works of authorship. This theory views the work as an instance of value. Drassinower criticized this framework as an inadequate account of why copyright law operates as it does. He was particularly concerned with how a law and economics approach marginalizes the public domain. Accordingly, he set out to construct his theory by examining core principles of copyright doctrine.
The Principle of Originality
A work must cross the originality threshold to merit copyright protection, and to become what Drassinower termed a ‘copyright citizen’. Value cannot explain copyright’s need for originality. For example: a telephone directory may hold greater value than a romantic poem, but it does not merit copyright protection. An examination of seminal case law revealed a delineation between the mechanical creation of value and acts of authorship. Drassinower argued such delineation invites a theory grounded in authorship.
The Principle of Independent Creation
Drassinower examined how copyright law would treat a hypothetical infringement case in which two authors independently wrote identical poems. The author who first wrote the poem (author A) sued the second (author B) for infringement. Not only is B not liable, copyright law deems her as an author in her own right. The hypothetical suggests that novelty is not a part of copyright theory, and led Drassinower to three further observations:
- A right is conditioned on the fact that it respects the rights of others.
- An author does not hold the work as an object of property. If this were so, the defendant’s poem would be seen as an act of conversion. Rather, copyright sees two independent rights over the same work.
- The fact that two identical works do not infringe each other is because they are independent acts of authorship. The rights protected by copyright are prerogative to support acts of speech; the translation of ideas into expression, not the idea itself.
These observations led Drassinower to the central tenets of his theory: Works of authorship should be viewed as communicative acts instead of instances of value. Authors are speakers.
Seen in this way, copyright infringement is the act of disposing of another’s speech in the absence of authorization; what Drassinower called ‘compelled speech’. Any rights over the communicative act must be consistent with the communicative rights of others. For example, copying for the purposes of commentary is lawful because the rights of the author must be consistent with the rights of others to respond. Fair dealing drops out of the author’s mouth as soon as she speaks. This also means that only communicative uses of the work are subject to copyright; hence why merely incidental, technical instances of copying are not infringement.
Commentary and Critiques
Professor Amani began by noting that Drassinower’s book only situated ‘speech’ within broader rights systems at the end of its reasoning, rather than as a foundational piece. She took issue with theory based on the ‘work-as-expression’ that neglected to address why, for example, copyrighted speech should be seen as a privileged form of expression over constitutionally protected speech. Adopting Drassinower’s metaphor, she asked, “why is copyright a ‘dual-citizen’ while constitutionally protected speech is only a ‘single-citizen’?”
She also addressed Drassinower’s lack of attention to subject matter. As his book focused almost exclusively on literary expression, it did not explore questions concerning artistic works. She argued that copyright is not only about rights, but also about the subject matter to which those rights attach; a distinction with political implications. She gave the example of how works created by women were historically regarded as ‘crafts’, rather than arts, and were excluded from protection. She wondered how Drassinower’s theory would treat expressions such as folklore, oral traditions, or even non-human works.
According to Professor Craig, Drassinower’s theory failed to take seriously the idea of authorship as communication and created a fundamental contradiction. For her, the idea that an unauthorized copier ‘disposes’ oneself of another’s work actually reinforces the idea of a work as a stable alienable ‘thing’ that can be bought, sold or gifted.
She critiqued Drassinower on this point using his infringement hypothetical. She imagined two scenarios: one in which speaker B attributed speaker A, and one in which she did not. If no attribution was given, there is no reason the public would associate the words with A. Rather than compelled speech, this would be a case of forced silence. If there was attribution, then B acknowledged A’s authorship. This is giving, not denying A the status of author. Even if B had spoken before A, Craig found it hard to see how B could be said to have ‘disposed’ of A’s speech. The outcomes in this scenario are either: the responding to, acknowledging of, or silencing of A by B – there is no outcome in which A was compelled to speak.
Craig ultimately conceded that while Drassinower’s theory made sense as a theory of law, it fell short as a theory of communication.
After the presentations, attendees participated in a wide-ranging discussion that further engaged with the issues raised. While the three speakers may have diverged on some points, they all articulated theoretical visions grounded in the public interest. There is little doubt that such perspectives will play an increasingly important role in the way judges, academics and lawyers think about copyright in the future.
Luca Lucarini is an IPilogue Editor and a JD candidate at Osgoode Hall Law School