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Courts and scholars today understand and discuss the institution of copyright in wholly instrumental terms. Indeed, given the forms of analysis that they routinely employ, one might be forgiven for thinking that copyright is nothing more than a comprehensive government-administered scheme for encouraging the production of creative expression and is therefore quite legitimately the subject matter of public law. While this instrumental focus may have the beneficial effect of limiting copyright’s unending expansion, it also serves as a source of distraction. It directs attention away from the reality that copyright is fundamentally a creation of the law and is thus endowed with a uniquely legal normativity that instrumental accounts find difficult to capture. In so doing, it also glosses over the rather crucial fact that copyright law’s basic structure is and indeed always has been that of private law.

In this Article, I argue that taking copyright’s legal architecture seriously reveals a matrix of core private law concepts and ideas that are in turn a rich and underappreciated source of normativity for the institution. In the process, I make three interrelated claims. First, copyright theories and analyses ought to pay greater attention to the analytical structure of copyright’s entitlement framework and the ways in which this structure seeks to operate in the real world. Discussions of copyright law would do well to appreciate that the institution’s exclusive rights framework functions almost entirely through its creation of an obligation not to copy original expression. Second, copyright can usefully be reconceptualized as revolving around the “wrong of copying,” which originates in the right-duty structure that copyright creates. Reorienting discussions along these lines allows for a more direct focus on why copyright treats copying as a wrong, what actions constitute the wrong, and which plural values can fruitfully coexist within its private law structure. Third, focusing on copyright’s internal logic need not come at the cost of its instrumentalism. To the contrary, such an approach entails mediating the institution’s instrumentalism through its private law structure on a nuanced, pragmatic basis.


Intellectual Property Law | Law