Private Law Theory

ABSTRACT
Copyright law recognizes two sets of rights. One is economic. The other is not. The former is justified by traditional economic theory: copyright incentivizes the creation of new works by providing exclusive rights that authors can use to recoup the costs of creating them. The latter – so-called moral rights – is typically justified by personality theory: when an author creates a work, she invests her ‘personality’ in it, generating a special relationship with the work that deserves separate protection. Moral rights, on this view, protect the author-work relation rather than the author’s ability to recoup the costs of creating the work. Personality theory, then, faces a challenge that economic theory does not. It must explain the nature of the author-work relation. In particular, it must explain what personality is and how investing it gives rise to a special author-work relation. Without an explanation of what personality is, we cannot understand the nature of the author-work relation or whether it is the kind of thing that deserves, or is capable of, protection.

Tracing personality theory from some of its earliest moral rights devotees, this Article argues that moral rights theory has failed because it has not developed a substantive account of the concept of personality. As a result, theorists have been unable to convincingly explain how personality could be invested into a work or, if investment is possible, the nature and content of the author-work relation. It contends that a justification of moral rights is likely to succeed, if at all, by moving away from the personality-investment metaphor and toward concrete interests. Rather than offering a grand philosophical theory, this Article identifies existing personal interests protected by civil law and asks whether it makes sense to extend similar protections to authored works. It argues that reputation-based regimes, like defamation and trademark, plausibly capture interests similar to the authors and may help to justify moral rights. Analyzing these regimes, however, shows that they contain important doctrinal limitations that make them challenging to apply to authors of copyrighted works.

Simon, David A, Copyright’s Missing Personality (November 27, 2024), Houston Law Review (forthcoming 2024); Northeastern University School of Law Research Paper No 483.