I would like to thank Peter Benson, Victoria Blond, Richard Bronaugh, Alan Brudner, Bruce Chapman, Andrew Christie, Wendy Gordon, Gillian Hadfield, Michael Meurer, Jim Phillips, Margaret Radin, Sophia Reibetanz, Arthur Ripstein, Catherine Valcke, Arnold Weinrib, and Ernest Weinrib for their comments. 1 would also like to thank the wonderful students that participated in my “Selected Issues in Copyright Law” Seminar at the University of Toronto Faculty of Law in the Winter of 2001 and in the Fall of 2002. It goes without saying that all errors are mine. Earlier—and longer!—drafts of this paper were presented at the “Intellectual Property Speaker Series,” Boston University School of Law, November 2000, and at the “Stanford/Yale Junior Faculty Forum,” Stanford Law School, June 2001.

1. For a recent overview of intellectual property theory, see Fisher, William “Theories of Intellectual Property’ in Munzer, Stephen R. ed., New Essays in the Legal and Political Theory of Property (Cambridge: Cambridge University Press, 2001) 168.Google Scholar The dominance of the instrumentalist view is clearer in the United States than in Canada. Nonetheless, the view that the rights-based view is incapable of accounting for the public domain prevails in Canada as well. Consider, for example, the exchange between R.J. Roberts, on the one hand, and A.A. Keyes and C. Brunet, on the other: Roberts, R.J. ‘Canadian Copyright: Natural Property or Mere Monopoly’ (1979) 40 Can. Patent Reporter (2d) 33;Google Scholar and Keyes, A.A. & Brunet, C. ‘A Rejoinder to “Canadian Copyright: Natural Property or Mere Monopoly”’ (1979) 40 Can. Patent Reporter (2d) 54.Google Scholar See also Vaver, David ‘Intellectual Property Today: Of Myths and Paradoxes’ (1990) Can. Bar Rev. 98;Google Scholar Fewer, David ‘Constitutionalizing Copyright: Freedom of Expression and the Limits of Copyright in Canada’ (1997) 55(2) U.T. Fac. L. Rev. 175;Google Scholar McKeown, John S. Fox Canadian Law of Copyright and Industrial Designs 3rd ed. (Scarborough, ON: Carswell, 2000) at 3–4;Google Scholar and Handa, Sunny Copyright Law in Canada (Markham, ON: Butterworths Canada, 2002) at 112–13.Google Scholar

2. See, for example, Moreau v. St. Vincent [1950] Ex. C.R. 198 at 203 (Can. Ex. Ct.): “It is … an elementary principle of copyright law that an author has no copyright in ideas but only in his expression of them. The law of copyright does not give him any monopoly in the use of the ideas with which he deals or any property in them, even if they are original. His copyright is confined to the literary work in which he has expressed them. The ideas are public property, the literary work is his own. Every one may freely adopt and use the ideas but no one may copy his literary work without his consent.” (Emphasis added).

3. Vaver, supra note 1 at 99–100. See also Vaver, David Copyright Law (Toronto, ON: Irwin Law, 2000) at 8.Google Scholar

4. Fewer, supra note 1 at 188.

5. Central among these doctrines is, of course, the idea/expression dichotomy. But one may also note, for example, the limited duration of the author’s copyright, the doctrine of merger, the requirement of fixation, and the defense of fair dealing. For an effort to account for the American doctrine of “fair use” from a “fairness” standpoint, see Parchomovsky, Gideon ‘Fair Use, Efficiency and Corrective Justice’ (1997) 3 Legal Theory 347 at 366–67CrossRefGoogle Scholar where Parchomovsky writes: “My point here is not that constraints on rights in works of authorship are never justifiable, but rather that such constraints must be rooted in considerations that respect rights.”

6. See Hughes, Justin ‘The Philosophy of Intellectual Property’ (1988) 77 Georgetown L.J. 287;Google Scholar Alfred, C. Yen ‘Restoring the Natural Law: Copyright as Labor and Possession’ (1990) 51 Ohio State L.J. 517;Google Scholar Alfred, C. Yen ‘The Interdisciplinary Future of Copyright Theory’ in Woodmansee, Martha & Jaszi, Peter eds., The Construction of Authorship: Textual Appropriation in Law and Literature (Durham, NC: Duke University Press, 1994) 159;Google Scholar and Gordon, Wendy ‘A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property’ (1993) 102 Yale L.J. 1533.CrossRefGoogle Scholar

7. On the public domain, see Lange, David ‘Recognizing the Public Domain’ (1981) 44 Law & Contemp. Prob. 147;CrossRefGoogle Scholar Litman, Jessica ‘The Public Domain’ (1990) 39 Emory L.J. 965;Google Scholar and Gordon, ‘Equality and Individualism’ supra note 6. On Locke’s role and influence in the historical emergence of modern copyright law, see Rose, Mark ‘The Author as Proprietor: Donaldson v. Becket and the Genealogy of Modern Authorship’ in Sherman, Brad & Strowell, Alain eds., Of Authors and Origins: Essays on Copyright Law (Oxford: Clarendon Press, 1994) 23 Google Scholar and Rose, Mark Authors and Owners: The Invention of Copyright (Cambridge, MA: Harvard University Press, 1993).Google Scholar See also Sherman, Brad & Bentley, Lionel The Making of Modem Intellectual Property Law: The British Experience, 1760–1911 (Cambridge: Cambridge University Press, 1999) at 11–42.Google Scholar For comparative discussion of Anglo-American and Continental European copyright doctrine and thought, see Netanel, Neil Weinstock ‘Copyright Alienability Restrictions and the Enhancement of Author Autonomy: A Normative Evaluation’ (1993) 24 Rutgers L.J. 347.Google Scholar See also Ginsburg, Jane C. ‘A Tale of Two Copyrights: Literary Property in Revolutionary France and America’ in Sherman, Brad & Strowell, Alain eds., Of Authors and Origins: Essays on Copyright Law (Oxford: Clarendon Press, 1994) 131;Google Scholar and Goldstein, Paul ‘The Two Cultures of Copyright’ Chapter 5 of Goldstein, Paul Copyright’s Highway: From Gutenberg to the Celestial Jukebox (New York: Hill and Wang, 1994) 165.Google Scholar

8. Locke, John Second Treatise of Government, ed. by Macpherson, C.B. (Indianapolis, ID: Hackett Publishing Company, Inc., 1980) at 19.Google Scholar The full text of Locke’s famous par. 27 of the Second Treatise reads: “Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has a right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.” (Emphases in original). See also par. 44, at 27: “From all of which it is evident, that though the things of nature are given in common, yet man, by being a master of himself, and proprietor of his own person, and the actions or labour of it, had still in himself the great foundation of property; and that, which made up the great part of what he applied to the support or comfort of his being, when invention and arts had improved the conveniences of life, was perfectly his own, and did not belong in common to others.” (Emphasis in original).

9. See Gordon, supra note 6. For a recent interpretation of Locke’s theory of property that emphasizes its egalitarian dimension not so much through the related roles of labour and the proviso but rather through the initial common ownership thesis, see Seana Valentine Sniff rin, ‘Lockean Arguments for Private Intellectual Property’ in Munzer, Stephen R. ed., New Essays in the Legal and Political Theory of Property (Cambridge: Cambridge University Press, 2001) 138.Google Scholar For a view of the inegalitarian dimension of Locke’s theory, see Macpherson, C.B. The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford: Oxford University Press, 1962).Google Scholar

10. See Kant, Immanuel The Metaphysics of Morals, trans, by Gregor, Mary (Cambridge: Cambridge University Press, 1996) at 49–86.CrossRefGoogle Scholar For commentary on Kant’s theory of property, see Gregor, Mary ‘Kant’s Theory of Property’ (1988) 41 Rev. Metaphysics 757.Google Scholar Baynes’, Kenneth ‘Kant on Property Rights and the Social Contract’ (1989) 72 The Monist 433,CrossRefGoogle Scholar includes a section on Kant’s critique of Locke. For a critical reading of Kant, see Marcuse, Herbert ‘Kant’ in Marcuse, Herbert From Luther to Popper, trans, by Joris, de Bres (Norfolk, UK: Verso, 1972) at 79–94.Google Scholar On the relation between property and personality, see Radin, Margaret Jane Reinterpreting Property (Chicago: University of Chicago Press, 1993).Google Scholar

11. On the historical emergence of the author as proprietor, see Mark Rose, “The Author as Proprietor’ supra note 7; Rose, Mark ‘The Author in Court: Pope v. Curll (1741)’ in The Construction of Authorship, supra note 6 at 211;Google Scholar and Mark Rose, Authors and Owners, supra note 7. See also, Woodmansee, Martha ‘On the Author Effect: Recovering Collectivity’ in The Construction of Authorship, supra note 6;Google Scholar Woodmansee, Martha ‘The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the “Author”’ (1984) 17 Eighteenth C. Stud. 425;CrossRefGoogle Scholar and Jaszi, Peter ‘On the Author Effect: Contemporary Copyright and Collective Creativity’ in The Construction of Authorship, supra note 6.Google Scholar Generally speaking, this literature deploys the historicity of authorship in an effort both to unmask the individualized ‘modern’ author as a ‘romantic’ fiction and thereby to undermine her claim to proprietorship on the basis of an unveiling of the collective or collaborative nature of intellectual labour and production. My position differs in that it does not share the presupposition that labour—albeit now posited collectively—is constitutive of property. Thus I seek not to question what I regard as the irretrievably individual aspects of the author’s labour, but rather to preclude the recalcitrant inference that such labour is constitutive of property. I see no need to give up the concept of individual authorship in order to criticize its exaggerations. I cannot help but suspect that, in seeking to ‘deconstruct’ authorship in order to criticize proprietorship, post-structuralism seems to fall prey to an unwitting reproduction of the very equation of authorship and proprietorship that is the intended target of critique. Consider in this regard Boyle, James ‘Copyright and the Invention of Authorship’ in Boyle, James Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, MA: Harvard University Press, 1996) at 51–60.Google Scholar At page 60, Boyle writes: “The romantic idea of authorship is no more a ‘mistake’ than classical economics was a mistake. It is both something more and something less than that. If one is critical of a system built on its presuppositions, one must begin by understanding both its authentic appeal and the deep conceptual itches it manages to scratch. Only then can one begin the critique.”

12. See Nichols v. Universal Pictures Corporation 45 F.2d 119 (2d Cir. 1930).

13. To raise the problem of copyright as a normative problem is—borrowing Wendy Gordon’s formulation—to raise the question of defining the conditions under which beneficial effort (i.e., labour) should generate a noncontractual right to reward. As Gordon has it, the author sends her work into the world in the absence of a promise of return. Hence the question to be raised is that of the conditions under which a lack of payment for the benefits gained by the recipients of this work should be deemed to be “unjust.” Gordon aptly suggests that we look to the law of unjust enrichment for guidance in the effort to refine our intuitions about the conceptual co–ordinates of the normativity of copyright. See Gordon, Wendy ‘On Owning Information: Intellectual Property and the Restitutionary Impulse’ (1992) 78 Virginia L. Rev. 149.CrossRefGoogle Scholar

14. My account of the idea/expression dichotomy is indebted to Weinrib’s, Ernest J. Kantian account of tort law in particular and private law in general in The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995).Google Scholar See also Weinrib, Ernest J. ‘Correlativity, Personality, and the Emerging Consensus on Corrective Justice’ (2001) 2 Theoretical Inquiries in Law (Online Edition) 107. Google Scholar

15. Nichols, supra note 12 at 122.

16. Ibid.

17. Ibid.

18. Ibid. (Emphasis added.) The distinction Hand J. draws here between “originality” and “novelty” is a distinction between copyright and patent. In patent, novel means new. If I invent something unaware that you have already invented it, my invention is not patentable in that it lacks novelty, and my usage of it, even though it originated in me in the sense that I did not copy it, would amount to an infringement of your patent. But in copyright, original means originating with the author, not copied. Thus, if I rewrite Cervantes’ Don Quixote out of myself, so to speak, without copying it, 1 have not infringed copyright (assuming that the Quixote is under copyright, of course!). For a fictionalized example of such rewriting, see Borges, Jorge Luis “Pierre Menard, Author of the Quixote” in Borges, Jorge Luis Labyrinths: Selected Stories & Other Writings, trans, by Irby, James E. (New York: New Directions, 1964) 36.Google Scholar

19. “Nor does she [the plaintiff] fare better,” Hand J. adds, “as to her characters. It is indeed scarcely credible that she should not have been aware of those stock figures, the low comedy Jew and Irishman. The defendant has not taken from her more than their prototypes have contained for many decades. If so, obviously so to generalize her copyright, would allow her to cover what was not original with her. But we need not hold this as a matter of fact, much as we might be justified. Even though we take it that she devised her figures out of her brain de novo, still the defendant was within its rights.” See Nichols, supra note 12 at 122. Emphasis added.

20. Ibid. at 121.

21. Ibid.

22. Ibid.

23. “The word ‘original’ does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of ‘literary work,’ with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work-that it should originate from the author.” University of London Press Ltd. v. University Tutorial Press Ltd., [1916] 2 Ch. 601 at 608–09. See also CCH Canadian Limited v. The Law Society of Upper Canada, (2002) FCA 187; and Desktop Marketing Systems Pty Ltd. v. Telstra Corporation Limited [2002] FCAFC 112. In the United States, the requirement of originality is a requirement of minimal creativity. In addition to being not–copied, an original work is a minimally creative work. More precisely, the creativity requirement comes to subsume the not–copied requirement. See Feist Publications Inc. v. Rural Telephone Service Co., (1990) 499 U.S. 340. Until recently, such may have been the position in Canada. See Tele-Direct (Publications) Inc. v. American Business Information Inc. (1997), 76 Can. Patent Reporter. (3d) 296 (F.C.A.). The Canadian Federal Court of Appeal has recently, in the Law Society case, either narrowed or reinterpreted the Tele-Direct position so as to render it consistent with the British, rather than the American, position as regards originality. For discussion of the issues involved, see Litman, Jessica ‘After Feist’ (1992) 17 U. Dayton L. Rev. 607;Google Scholar Siebrasse, Norman ‘Copyright in Facts and Information: Feist Publications Is Not, and Should Not Be, the Law in Canada’ (1994) 11 Canadian Intellectual Property Review 191;Google Scholar Fewer, David ‘A Sui Generis Right to Data? A Canadian Position’ (1998) 30 Canadian Business L.J. 165;Google Scholar Robert G. Howell, ‘Database Protection and Canadian Laws: State of Law as of June 15, 1998’ available at http://strategis.ic.gc.ca/SSG/ip01044e.html; Knight, Graham A. ‘The Fall and Rise of Sweat of the Brow’ (1999) 13 Intellectual Property Journal 337;Google Scholar Knopf, Howard P. ‘The Database Dilemma in Canada: Is “Ultra” Copyright Required?’ (1999) 48 University of New Brunswick L.J. 163;Google Scholar Knopf, Howard P. ‘A Tale of Two Columns: Confusion Concerning Compilation Copyright in Canada’ (2001) 23(8) Euro. Intell. Prop. Rev. 388;Google Scholar Sookman, Barry Computer, Internet and Electronic Commerce Law, looseleaf (Toronto, ON: Carswell, 2001) at 3–111–3–132.3;Google Scholar and Tawfik, Myra ‘Decompiling the Federal Court of Appeal’s “NAFTA Argument” in Tele-Direct (Publications) Inc. v. American Business Information Inc.—From Facts to Fiction’ (2001–2002) 33 Ottawa L. Rev. 147.Google Scholar

24. See, for example, Kilvington Brothers Ltd. v. Goldberg ( 1957), 8 D.L.R. (2d) 768 (Ont. H.C.).

25. See Kant, Immanuel ‘On the Wrongfulness of Unauthorized Publication of Books’ in Practical Philosophy, trans, and ed. by Gregor, Mary J. (Cambridge: Cambridge University Press, 1996).Google Scholar

26. See, for example, Moreau v. St. Vincent, supra note 2 at 203: “Every one may freely adopt and use the ideas but no one may copy his literary work without his consent.” (Emphasis added)

27. See Pierson v. Post 3 Cai, R. 175 (N.Y. Sup. Ct. 1805). For commentary, see Rose, Carol M. ‘Possession as the Origin of Property’ in Rose, Carol M. Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership (Boulder, CO: Westview Press, 1994);Google Scholar and Benson, Peter ‘The Idea of Property in Private Law’ in The Oxford Handbook of Jurisprudence and Philosophy of Law, ed. by Coleman, Jules & Shapiro, Scott (Oxford: Oxford University Press, 2002) at 752.Google Scholar

28. See Canadian Admiral Corporation ltd. v. Rediffusion Inc., [1954] Ex. C.R. 382; Gould Estate v. Stoddart Publishing Co. (1996), 30 O.R. (3d) 520 (Gen.Div.). I do not intend to enter here into the question whether, normatively speaking, fixation ought to be a necessary dimension of copyrightability. That may or may not be the case. For an objection to the fixation requirement, see Brennan, David J. & Christie, Andrew ‘Spoken Words and Copyright Subsistence in Anglo-American Law’ (2000) 4 I.P.Q. 309.Google Scholar My point is that copyright can protect only what is externally recognizable. If the requirement of external recognizability can be met otherwise than through fixation, then at least that function of the fixation requirement would have already been fulfilled. In fact, even in the context of first possession in the world of real property, the acts required to make out ‘possession’ vary according to the nature of the object in question. See, for example, The “Tubantia” [1924] All ER 615 (Pr. & Ad. Div).

29. Nichols, supra note 12 at 122.

30. Nichols, supra note 12 at 121.

31. I hesitate because the doctrine of merger seems to contemplate the possibility that ideas may be ‘possessed’ or ‘occupied.’ The doctrine provides that “(i]f an idea can be expressed in only one or in a very limited number of ways, then copyright of that expression will be refused for it would give the originator of the idea a virtual monopoly on the idea. In such a case it is said that the expression merges with the idea and thus is not copyrightable.” See Delrina Corporation v. Triolet Systems Inc. (1993), 47 C.P.R. (3d) 1 (Ont. Gen. Div.) at 41. See also Morrissey v. Procter & Gamble Company, 379 F.2d 675 (1st Cir. 1967); and Herbert Rosenthal Jewelry Corporation v. Kalpakian, 446 F.2d 738 (9th Cir. 1971). Thus it is as if the law of copyright refuses protection precisely at the point where expression most closely resembles exclusive ‘possession’ or ‘occupation’ of an idea. To be sure, the problem of occupation may be a reason why the law refuses to copyright ideas. Nonetheless, the doctrine of merger suggests diat the problem of occupation, considered as an evidentiary problem, cannot be the whole of the story.

32. See, for example, Litman, supra note 7; and Yen, ‘Restoring the Natural Law’ supra note 6. See also Siebrasse, Norman ‘A Property Rights Theory of the Limits of Copyright’ (2001) 51 U.T.L.J. 1.CrossRefGoogle Scholar

33. 8 Anne, c. 19 (1710). On the ‘literary property’ debate, see Rose, ‘The Author as Proprietor’ supra note 7; and Sherman&Bentley, supra note 7.

34. 98 Eng. Rep. 257 (1774).

35. See Rose, “The Author as Proprietor,” supra note 7; and Sherman & Bentley, supra note 7.

36. Thus, in Canada, the Supreme Court has stated, in Compo Co. Ltd. v. Blue Crest Music Inc. (1979), 105 D.L.R. (3d) 249 at 261 (S.C.C.), that “… copyright law is neither tort law nor property law in classification, but is statutory law. It neither cuts across existing rights in property or con-tract nor falls in between rights and obligations heretofore existing in the common law. Copyright legislation simply creates rights and obligations upon the terms and in the circumstances set out in the statute. This creature of statute has been known to the law of England at least since the days of Queen Anne when the first copyright statute was passed. It does not assist the interpretative analysis to import tort concepts. The legislation speaks for itself and the actions of the appellant must be measured according to the terms of the statute.” In the U.S., the instrumentalist view has nothing less than constitutional lineage. U.S. Const, art I, § 8, cl. 8 states that “Congress shall be empowered … To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries …” But see Yen’s suggestive discussion of the clause in “Restoring the Natural Law,” supra note 6. The received wisdom is that, historically speaking, the basic structure of the ‘literary property’ debate opposed those who asserted the common law origins of copyright as a matter of natural right to those who insisted upon its exclusively statutory source as a state-granted monopoly. Thus the contrast between common law copyright and statutory copyright is often seen as a distinction between rights-based and utilitarian accounts of copyright. Conceptually speaking, however, nothing precludes the view that a copyright statute is but a recognition and affirmation of authorial dignity. Nor is there anything conceptual precluding the view that common law copyright was itself nothing more than the result of utilitarian reasoning.

37. Kaplan, Benjamin An Unhurried View of Copyright (New York: Columbia University Press, 1967).Google Scholar

38. See, for example, Lange, supra note 7; Litman, supra note 7; Gordon, supra note 6; Gordon, supra note 13; Waldron, Jeremy ‘From Authors to Copiers: Individual Rights and Social Values in Intellectual Property’ (1993) 68 Chi.-Kent L. Rev. 841;Google Scholar Friedman, Barbara ‘From Deontology to Dialogue: The Cultural Consequences of Copyright’ (1994) Cardozo Arts & Entertainment L.J. 157;Google Scholar Netanel, Neil Weinstock ‘Copyright and a Democratic Civil Society’ (1996) 106 Yale L.J. 283;CrossRefGoogle Scholar Fewer, supra note 1; Litman, Jessica Digital Copyright (Amherst, NY: Prometheus Books, 2001).Google Scholar See also Radin, Margaret Jane & Wagner, R. Polk ‘The Myth of Private Ordering: Rediscovering Legal Realism in Cyberspace’ (1998) 73 Chi.-Kent L. Rev. 1295.Google Scholar For criticism of what he calls “the public domain club,” see Samuels, Edward ‘The Public Domain in Copyright Law’ (1993) 41 J. Copyright Society 137.Google Scholar

39. See, for example, Netanel, ibid. William Fisher describes this approach as “similar to utilitarianism in its teleological orientation, but dissimilar in its willingness to deploy visions of a desirable society richer than the conceptions of ‘social welfare’ deployed by utilitarians.” See Fisher, supra note 1 at 172.