When trainees meet terminology: how should we describe copyright?

"Not so", said Keith the Kitten, "copyright
is surely a monopoly not an exclusive right ..."

Several times each year, this Kat is called upon to give an overview of IP to the new intake of trainee kittens. Truth be told, the task has become ever more challenging as increasing numbers of such legal kittens come armed with one or more courses on IP. While the saving grace is that IP in the Academy can be a lot different than a trainee overview of the topic, the task of staying one-step ahead of these well-trained kittens can still sometimes be daunting. A prime example occurred recently during my last trainee presentation, as I was covering the copyright portion. At some point I described copyright as a unique type of “exclusive” right. “Not so”, intervened one of the trainees. “I had a course on the subject, and we were taught that copyright is a monopoly right.” While I deflected the issue (“let’s talk about it after the presentation”—which we did), the comment got me to thinking once again: how should we be describing copyright; indeed, should be seeking to describe it at all in such a fashion?

Let’s begin with copyright as a monopoly right. In this Kat’s mind, a monopoly is simply an undesirable economic situation, which is characterized by a lack of economic competition to produce a specific good or service as well as a lack of a viable substitute good (indeed, this Kat’s first field of practice in the law was antitrust/competition law, until President Reagan largely neutered it in the 1980s.) Monopolies are bad economic entities, and we tolerate them only at the margin, such in the context of a so-called “natural monopoly". How copyright fits into this notion is, for this Kat, a mystery.

Better, in this Kat’s view, is the characterization of copyright as an “exclusive” right. Within the context of the nature of copyright, this would seem to mean that if I have created an original work, then the rights in that work are “exclusive” to me. But, upon reflection, this Kat can ask—is that just so? After all, independent creation of the identical work will confer upon the second author an equal exclusive right, with the result that there will be two owners of the same ultimate work, each of which has an exclusive right. For two or more entities to each enjoy an exclusive right in the same work (“same” not in the sense that both works derive from a single act of creation but rather in the sense that both works are identical in outcome) would seem to distort the meaning of the term. When I grant an exclusive licence (not “sole” licence) to a third party to use my copyright, as between the two parties to the licence, only one of which enjoys the exclusive right of use as described in the agreement. The notion of “exclusivity” in this context seems even more in line with the meaning of the term (“unable to exist or be true if something else exists or is true excluding or not admitting other things”). That said, this Kat remains of the view that describing copyright generally as an exclusive right is closer to the mark than describing it as a monopoly right.

But this raises a more fundamental question—why the need to use a descriptive term at all, if it is not fully applicable? If one describes the right as a “monopoly”, presumably he means what he says. If copyright does not really meet the test for “monopoly”, then why employ the term?  After all, we are in the realm of law and not literature, only the latter of which countenances literary licence. Even the use of the term “exclusive” may be inadequate, although in this Kat’s view, far less so. Perhaps, at the end of the day, this Kat should simply opt for the description of copyright as a statutory right defined by terms of the statutory enactment—and no more.