Private Law Theory

ABSTRACT
The paper seeks to contribute to ongoing efforts to develop lines of thinking about the public domain in copyright law. The paper examines not the balance between author and public but rather the publicness of authorship itself. The paper posits the public domain not under the rubric of copyright scope but rather under that of copyright subject matter. It asks not ‘what is the role of the public once we know what a work of authorship is?’ but rather ‘can we think about the role of the public as part and parcel of our thinking about copyright subject matter?’ The paper responds to that question by formulating the concept of the work of readership in copyright through an analysis of the idea/expression dichotomy. It is true not only that ideas are radically and freely available, but also that, as a matter of copyright law, ideas are not available per se: they are accessible only as expressed, only in and through a work of authorship.

On the basis of what it calls the copyright principle of the inaccessibility of ideas per se, the paper finds that the trivial proposition that an ordinary white-pages phone-directory is not subject to copyright protection because it is not original in the relevant sense (ie it does not express an idea), entails that (1) a work of authorship is an expression of an idea that (2) cannot be accessed per se, and that (3) therefore the concept of copyright subject matter both posits and presupposes the work of a reader. Just as authorship is not data collection, so is reading not data ingestion. To construe the reader passively, as mere consumer, is to misunderstand the idea/expression dichotomy. The reader through their own activity moves from expression to idea just as the author had moved from idea to expression. The upshot of the analysis of the idea/expression dichotomy is that copyright subject matter is irreducibly the confluence of authorship and readership. As the domain of ideas, the public domain is a domain of shared thinking. By way of conclusion, the paper offers a comparison of copyright and trademark designed to flesh out the concept of the work of readership; to make observations about the nature of the right in copyright; and to draw implications flowing from the concept of the work of readership about the status of copies for personal use in copyright law.

Drassinower, Abraham, The Work of Readership in Copyright (November 15, 2023), AIDA: Annali Italiani Del Diritto D’autore, Della Cultura E Dello Spettacolo, 2024.