The End of the Work As We Know It

Journal of Intellectual Property Law Volume 19 Issue 2 Article 5 March 2012 The End of the Work As We Know It Michael J. Madison Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Intellectual Property Law Commons Recommended Citation Michael J. Madison, The End of the Work As We Know It, 19 J. INTELL. PROP. L. 325 (2012). Available at: https://digitalcommons.law.uga.edu/jipl/vol19/iss2/5 This Article is brought to you for free and open access by Digital Commons @ University of Georgia School of Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ University of Georgia School of Law. Please share how you have benefited from this access For more information, please contact . Madison: The End of the Work As We Know It THE END OF THE WORK AS WE KNOW IT MichaelJ. Madison* TABLE OF CONTENTS ..................................... ...... 326 I. INTRODUCTION II. THE WORK IN AND OUT OF CONTEXT III. CURRENT AMERICAN COPYRIGHT LAW ................................................ 329 IV. To HISTORY AND BEYOND...................................................................... 333 V. WORKS IN ACTION ....... ........................................................ 340 A. THE PLATONIC WORK AND THE BOUNDARY BETWEEN OLD AND N EW ........................................................................................................ 340 B. INCOMPLETE WORKS AND WHEN A WORK COMES INTO BE IN G ..................................................................................................... 342 344 .................................... C. WORKS, NOT THINGS 345 D. THINGS THAT ARE WORKS................................................................. E. CHOOSING ONE WORK OR MANY WORKS....................................... 348 F. DYNAM IC W O RKS ................................................................................. 350 VI. CONCLUSION ................... .................................................. ..... 328 352 * Professor of Law, University of Pittsburgh School of Law. E-mail: michael.j.madison@gma il.com. 325 Published by Digital Commons @ University of Georgia School of Law, 2012 1 Journal of Intellectual Property Law, Vol. 19, Iss. 2 [2012], Art. 5 326 J. INTELL PROP.L [Vol. 19:325 I. INTRODUCTION Intellectual property law is anchored in a handful of fundamental yet illdefined concepts. Those concepts change over time, as virtually all concepts do, but worse, in some key cases they seem to have little to no meaning whatsoever. Can those concepts be rehabilitated, should they be rehabilitated, and if so, how? Patent law builds on the idea of invention. "Invention" and "the invention" (related but distinct concepts) are reducible, at times in history and at times in the law, to subsidiary concepts: novelty, nonobviousness (in American law), an "inventive" step (in non-American patent systems), and utility. The meaning of "invention" and "the invention" in patent law are hardly free from ambiguity generally or in any particular instance, but relevant meanings are typically clustered together sufficiently so that the law and the inventive economy appear to get by, mostly, with an acceptable degree of difficulty. Copyright law builds on the idea of the author, which has been critiqued at length, and also on the idea of the work, represented in American law as the "work of authorship." The concept of the work appears to have little or no fixed meaning or meanings in the law, despite decades of inclusion of both term and concept in relevant statutes and treaties. It is, therefore, the subject of this Article.' The idea of the work is fundamental to all of contemporary copyright law and has been fundamental to most copyright law of the last century and a half. The emergence of digital technology over the last three decades reveals that the idea of the work may not be up to the task of adequately linking the text and structure of the law to the practices and expectations of the creators, consumers, technologists, and related industries and institutions that the law governs. But the problem here is not simply technological. What I call the dematerialization of the work, along with the consequences of de-materialization for the law as well as for creative practices, have their roots in the emergence of modern copyright law more than a century ago. What seems to be a highly conceptual or theoretical problem-what is a The existence of a work work?-has significant practical implications. determines the existence and scope of a copyright owner's initial rights.2 In an infringement suit, identity between the plaintiffs work and the work of the I My interest coincides with a modest amount of other recent scholarship on the same topic. See Paul Goldstein, What is a Copyrighted Work? Why Does it Matter?,58 UCLA L. REV. 1175 (2011); Justin Hughes, Site Matters (or Should) in CoprightLaw, 74 FoRDHAM L. REV. 575 (2005); see alSo sources cited infra note 6. 2 See 17 U.S.C. § 102(a) (2006) (providing the categories of works of authorship). https://digitalcommons.law.uga.edu/jipl/vol19/iss2/5 2 Madison: The End of the Work As We Know It 2012] THE END OF THE WORK AS WE KNOW IT 327 accused infringer is fundamental to determining liability,3 and a contrast between the plaintiffs work and the defendant's work is fundamental to determining the scope of possible fair use or fair dealing defenses. 4 Given an initial work, does that work comprise subsidiary works (as a book might comprise separate chapters, each of which might be a work)? When does an initial work become a new, derivative work? American copyright law awards statutory damages on the basis of the number of works infringed,5 giving copyright owners a substantial incentive to multiply the number of works they identify in their creations. Those doctrinal implications represent the superstructure of my inquiry. The underlying foundational questions are the ones I wish to ask and answer here, at least in part. What analytical function has the concept of the work been performing in the law, why has it been performing that function, what flaws in the work have been exposed, and what, if anything, should law reformers do about them? I argue below that copyright scholars and lawyers have been insufficiently attentive to the several dimensions of the work-functional, expressive, and communicative-which, combined, should inform our understanding of what the work is, what it means, and what it does. I organize the Article in the following brief steps. First, what is a work? I summarize the text and structure of the American Copyright Act, in light of relevant international copyright history as well as American copyright history. For reasons of space I focus on American copyright law, although, as I note below, the idea of the work as a foundational concept in copyright emerged elsewhere bef (...truncated)