Abandonment, copyright and orphaned works: what does it mean to take the proprietary nature of intellectual property rights seriously?

• Jurisdiction: Australia
• Author: Hudson, Emily
• Date: 01 December 2011

[For many years there was doubt as to whether personal property could be abandoned In more recent times, however, the existence of a doctrine of abandonment has been solidifying in relation to chattels. In this article the authors suggest that copyright works can also be abandoned This conclusion has significant implications for cultural institutions and other users struggling to deal with so-called 'orphaned works'. More generally, the authors suggest that recognising that abandonment of copyright is possible has repercussions for how we think about intellectual properly rights and, in particular, should cause us to look more closely at other doctrines within the law of personal property that might limit intellectual property's reach.]

CONTENTS I Introduction II Abandonment A Abandonment and Choses in Possession B Abandonment and Copyright C Objections to Abandonment of Copyright 1 Johnson's Objections 2 Other Objections III Determining Abandonment and Its Application to Orphaned Works IV Conclusion: Propertising Intellectual Property I INTRODUCTION

Intellectual property has become a highly controversial and politicised topic, with recent expansions of its boundaries being met with fierce criticism. The resulting disagreements have been played out by reference to economics, moral philosophy, and theories of authorship and scientific innovation. In addition, however, there has been a linguistic component to these debates, one that has revolved around the question of whether intellectual 'property' rights are really a species of property at all. Advocates of expansive rights frequently insist that the proprietary nature of intellectual property needs to be afforded respect. (1) Conversely, one complaint that is commonly voiced by those who believe that intellectual property rights often overreach is that uncritical acceptance of the rubric of property has facilitated the expansion of intellectual property's domain. (2) In these debates one finds an echo of arguments over language that can be traced back to the mid 19th century and before. There was, for example, a linguistic dimension to arguments over copyright term extension in the 1830s and '40s in the United Kingdom ('UK'), with opponents of term extension preferring the language of 'monopoly' to that of 'property' when describing copyright. (3)

This article does not seek to answer the question of whether copyright and other forms of intellectual property can fairly be described as property. This question has been endlessly debated and it is doubtful whether anything less than a book-length study could add meaningfully to the existing literature. Still more importantly, however, we are of the view that this debate is in danger of missing the point. We are positioned amongst those who believe that intellectual property rights often overreach. Many of this group are quick to insist that the property label is inapt, and argue that to concede the label of property is to give ground without a fight to those who wish to see the law's boundaries expanded. But to our mind this position is both unwise and ultimately unconvincing. It is unwise because, for better or for worse, the idea that intellectual property rights are a species of property is one that has become firmly embedded in legal, political and (to some degree) public discourse. (4) As a consequence, to insist that intellectual property rights are not proprietary can appear unworldly and is to put oneself on the wrong side of a widely shared understanding. It is unconvincing because the set of legally protected interests that we now group under the banner of 'intellectual property' have long been regarded as proprietary in nature--in the case of copyright the argument over language had almost certainly been lost by the 1830s (5)--and it seems odd to suggest that it is only now that notions of property have helped ease the acceptance of stronger rights. This suggests that something else is going on, perhaps related to how the rhetoric of property is used in debates about the reach of intellectual property. Once this broader context is taken into account, we believe there are serious problems with the proposition that if we take seriously the idea that intellectual property is property, we will inevitably end up with more expansive rights. (6)

To our mind, therefore, the problem lies not in the property tag per se, but rather in the particular understanding of property that has become embedded in debates over the proper scope of intellectual property rights. Both advocates and opponents of stronger rights frequently approach property as providing a 'despotic dominion' that confers a set of strong and immutable rights on the owner. (7) In contrast, we want to suggest that if calls to respect the proprietary status of intellectual property rights are understood to be synonymous with a call for more expansive rights, then this reflects a misunderstanding of the nature of property rights and how they are exploited, transferred and destroyed. (8) In this article we focus on the doctrine of abandonment and what such a mechanism for losing rights would mean for the law of copyright. This is part of a broader project in which we argue that we can and should look to chattel property to learn how limits on intellectual property rights might be crafted.

We suggest that the general law of abandonment can be applied in such a way as to remove copyright protection from some types of works without compromising the integrity of either the copyright system or the rules on abandonment. This conclusion has important implications in the case of works that have been dedicated to the public domain. However, we go further and argue that the doctrine of abandonment can also be applied in other circumstances, including in relation to some categories of 'orphaned works' (that is, copyright works for which it is not possible to identify or locate the owner). Admittedly, an application of the law of abandonment would not solve the orphaned works problem. (9) Nevertheless, it would confer both direct and indirect benefits on many users of copyright works, including institutional users such as libraries, archives and museums. Still more importantly, acceptance that abandonment of copyright is possible might allow us to look more creatively at how other doctrines within the law of personal property might be used to limit the reach of intellectual property rights, and we may come to recognise that some of the problems created by intellectual property's overexpansion would be mitigated if we are prepared to accept that intellectual property rights should be afforded similar treatment to other forms of personal property. In this way, this article aims to shift the debate away from the binary 'property/not property' debate about the nature of intellectual property rights in order to focus on what we believe to be a more nuanced and ultimately more fruitful question--namely, what does it mean to take the proprietary nature of intellectual property rights seriously?

As a final introductory point we should note that our focus is on the legal position in Australia, but in developing our argument we draw on sources both from elsewhere within the British Commonwealth and from further afield.

II ABANDONMENT

A Abandonment and Choses in Possession

It is uncontroversial that we can lose rights by intentionally transferring them to someone else. For instance, we can sell or give away a chattel, and we can assign rights in copyright works and other forms of intellectual property. More controversial is the question of whether we can lose rights by voluntarily and irrevocably relinquishing them in the absence of a recipient. Such a mechanism is commonly referred to as abandonment.

In the 1920s, the Tasmanian case Johnstone & Wilmot Pty Ltd v Kaine ('Johnstone & Wilmot') held that the intentional abandonment of a broken-down motor truck did not divest the owner of his rights, and that a finder of abandoned property is in the same position as a finder of lost property (ie his or her title is susceptible to a claim by the owner). (10) In reaching this conclusion, Clark J quoted from Oliver Wendell Holmes that the common law 'abhors the absence of proprietary or possessory rights as a kind of vacuum'. (11) It is notable, however, that the authorities cited by Clark J in the course of his judgment were mixed. Although one case did indicate that an owner cannot relinquish property in goods unless those rights are vested in another, (12) others--particularly those dealing with treasure trove and wrecks--supported the existence of a doctrine of abandonment. (13)

More recent Australian authority is much more supportive of the view that abandonment is possible. There does not appear to be any recent case that supports the approach adopted in Johnstone & Wilmot. Some judges have equivocated and not come to any firm conclusion about whether abandonment is legally possible. (14) In these cases such an approach has not generally impacted on the end result, for instance because the facts did not disclose any abandonment even if it were accepted as a mechanism to lose rights. In contrast, other authority has held that abandonment of goods is possible and that a finder who subsequently brings that chattel into his or her possession will thereby obtain good title. (15) This proposition was explored in detail in the Queensland case Re Jigrose Pry Ltd ('Re Jigrose'). (16) The applicant had sold farmland to the respondents. The contract of sale utilised standard conditions of sale, including a clause under which: (1) any property not sold under the contract would be removed from the land before the respondents took possession; and (2) any such property not removed would be deemed to be abandoned, and the respondents could dispose of that property in any manner they thought fit. The applicant left $20 000 worth of hay on the land. The respondents would not...