Personal property has historically and conventionally been concerned with tangibles. This is because a tangible subject matter helps property rights to be comprehensible, by setting recognisable limits to their scope. The inclusion of copyright in the property framework is therefore not only questioned from property but also by normative theorists. To leading property theorists, including Michael Bridge, Ben McFarlane, Simon Douglas, and William Swadling, copyright is a misnomer, if not a misfit in a property framework. To them, the subject matter of copyright is not suitable for personal property, as it cannot qualify as a chose in possession. The subject matter of copyright is the work, conceptualised as a specific type of information and intangible in nature. This means that the work cannot be possessed like the category of choses in possession requires it to be. However, the other category of property objects – choses in action – is also not a perfect fit for copyright. Choses in action most commonly describe debts or claims. This means that copyright works, although an intangible entity, do not neatly fit into the category of choses in action. Therefore, copyright challenges current property theory as it conventionally requires the subject matter of property to either be classifiable as a chose in possession or a chose in action. Normatively the inclusion of copyright in property is feared as liable to cause societal power imbalances. In private law, property is regularly described as one of the strongest bundles of rights. It is therefore commonly believed that adopting a property framework in copyright will over-expand the scope of protection of copyright works. This seems especially concerning as copyright protects certain types of information. An over-expansive copyright therefore risks removing too much information from the public domain. This is why copyright is very often positioned as infringing the right to freedom of speech by removing certain information from open reproduction and distribution. How to limit the scope of copyright is therefore one of the biggest concerns of normative theorists. Taking all these considerations into account, it is not surprising that a property framework is often seen as normatively and doctrinally destructive to copyright. Poorna Mysoor, however, challenges these preconceived notions by taking the ‘property’ in intellectual property – and more specifically in copyright – seriously. In her monograph, Copyright and Personal Property, she expertly shows the doctrinal and normative benefits of interpreting copyright law through a property lens. Through in-depth accounts, Mysoor explores how employing a property doctrine not only enlightens doctrinal understanding but also limits the scope of copyright. To make her analysis legally coherent and easily digestible, Mysoor uses the method of analogy. This means that she tries to find equivalents for property concepts in copyright by identifying commonalities in the interests served by property and copyright concepts. She employs this method not only to show where typical property interests are expressed in copyright law, but also to explore how copyright could be interpreted differently to resemble property law more closely. Through analogy to property, Mysoor restructures the doctrine of copyright, interrogates structural and conceptual commitments of property law, and shows the normative benefits of applying property doctrine in copyright. Regarding the structure of property law, Mysoor aims to dissolve the sharp distinction between the chose in action and chose in possession categories in property theory. By showing how copyright cannot be convincingly slotted into either category, she argues in favour of property as a spectrum. Normatively, Mysoor shows how the analogy to personal property is a limiting tool for the scope of copyright. The author argues that (i) introducing thinghood, (ii) raising the threshold for acquisition, (iii) applying the numerus clausus, and (iv) nuancing the tort of property all limit the scope of copyright. These arguments are presented in the monograph by first establishing the framework that enables the use of analogy between copyright and personal property (Chapters 1 and 2) and then exploring the application of the analogy in the areas of acquisition, ownership, infringement, and derivative interests (Chapters 3, 4, 5, 6, and 7). The first chapters of the second part (Chapters 3 and 4) mainly show how the doctrine of property is already present in copyright, while the latter chapters of the second part (Chapters 5, 6, and 7) show how copyright could benefit normatively from tracking conventional property law more closely. It is this methodological and detail-oriented approach that makes this monograph not only a valuable contribution to understanding the doctrine of copyright and property theory but also an example of the normative power of expertly applied legal methods. It means that Mysoor's book is suitable not only for an audience of property and intellectual property theorists but also for those researching normative questions in copyright. Doctrinally, Mysoor shows how to reframe our understanding not only of copyright but also of personal property. Through rich accounts, she develops a doctrinally unified structure in which personal property and copyright can exist along a spectrum. She achieves this by exploring how the formal structure of these two areas (copyright and personal property) can be read in the light of their underlying interest. This approach exaggerates the similarities between copyright and personal property, leading to a doctrinal reframe of either copyright or personal property. An example of reframing the copyright doctrine can be found in Chapter 3. There, Mysoor identifies that in personal property, taking possession is a way of sending an exclusionary and relational signal from the one taking possession to third parties. She argues that the same signals are sent by expression and originality in copyright. This means that the interests that have to be considered when it comes to expression and originality in copyright have to be evaluated in parallel to the interests relevant to taking possession. The doctrinal claims of the monograph rest heavily on Mysoor's exploration of thinghood in Chapter 2. She argues that work in copyright can be qualified as a thing and neither intangibility nor a lack of rivalrousness disqualifies it from being one. This leads her to argue that property is not split between choses in possession and choses in action, as the thing in copyright (the work) cannot be neatly sorted into either of these categories. It is important to note here that this reframing of the property doctrine is one of the core building blocks that allows Mysoor to draw the analogy between copyright and personal property in the later chapters. Only if thinghood in copyright is established do the parallels to personal property become apparent. To me, the arguments in this chapter also have the biggest academic impact on the overall theory of intellectual and tangible property, as the discoveries made here are most likely transferable to other areas of intellectual property, like trademarks and patents. Mysoor's doctrinal contribution is especially valuable as she does not take a position on the academic disagreements about the core characteristics of property apart from the separation of choses in possession and choses in action and the significance of the numerus clausus. Rather, she examines the various theories about the defining features of property and shows how these can also be found in copyright law (for example, exclusion in Chapter 5 and assignment in Chapter 7). This approach is what makes her monograph so widely applicable and persuasive. Mysoor masterfully demonstrates how multiple concepts of property can be found in copyright law. Her monograph is therefore a valuable contribution to even contradictory concepts of property. Turning to the normative contribution of this monograph, Mysoor critiques the common perception of property as an expansive and overpowering legal construct. She shows how property principles limit the scope of copyright. For example, in Chapter 5, she explores how adopting a property of torts model in copyright infringement could limit the liability of third parties in copyright. This, in turn, limits the scope of exclusionary rights in copyright. In detail, Mysoor advocates for adopting a more nuanced approach to copyright infringement, taking into account whether the infringement was direct and voluntary. In particular, she calls for departure from the CJEU (Case C-5/08 Infopaq International A/S v Dansk Dagblades Forening ECLI:EU:C:2009:465) and for liability to require infringement of a substantial part of the work. Based on property tort law, Mysoor argues for trespass-like liability for literal copying, private nuisance-like liability for non-literal infringement, and negligence-like liability for unconscious copying. A key doctrine of property in this endeavor to limit the scope of copyright is the numerus clausus doctrine. Mysoor defines the numerus clausus as a limitation of the content and number of property rights to enable third parties to easily recognise the scope of property rights. For example, in Chapter 7, Mysoor employs the numerus clausus to argue that the exclusive licence in copyright should be replaced with a time-restricted partial assignment that is only limited by certain events to create the certainty required by the numerus clausus. This means that the scope of the partial assignment is securely limited, which narrows the scope of the copyright use rights granted by the partial assignment. To conclude, the title of this monograph is sure to capture the attention of most property theorists, especially those who believe property in intangibles to be impossible. This might be the reason why the approach in this monograph aligns with more critical or heterodox understandings of the property object (often from an intellectual property perspective) put forward by scholars such as Brad Sherman and Lionel Bently, Henry Smith, James Penner, Molly Shaffer Van Houweling, and Shyankrishna Balganesh. Notably, Mysoor takes the foundational status of tangibility with all its implications for the doctrinal nature and normative effects of property law seriously. Yet, she takes these debates further by specifically focusing on copyright, while employing the universally accepted method of analogy to construct arguments that are convincing for even the most critical of readers. In this regard, the monograph shows that thinghood is the central problem for arguing whether personal property and copyright can be constructed in doctrinal parallel. This means that Mysoor shows not only that the subject matter of copyright is a thing, but also that intangibility does not exclude the thing in copyright (work) from the property framework. While philosophy and sociology might be able to answer the questions of whether intangible things can exist, Mysoor convincingly shows that rivalousness cannot be a defining feature of a thing from a property law perspective. This leads me to view this monograph as an invitation to think more critically about why tangibility is deemed an important characteristic of things governed by personal property. What are we trying to get at when we require tangibility for something to be an object of property? And are the characteristics we deem tangibility to represent (rivalry, for example) actually embodied in tangibility? Mysoor's monograph engages deeply with these questions and offers detailed arguments and discoveries not only for personal property and copyright but also for property in general. Mysoor shows us that our preconceived notion of property as a ticket for unlimited powers and rights is false. Rather, we should look more closely to discover that property might not be the cause but rather the solution for an over-expanding copyright.
Elmi Muller (Sat,) studied this question.