Copyright law tends to focus on works rather than the process that created them. Most of the time, this framework is usually adequate. But what if, for example, a monkey took a picture of itself with a camera that had been set up by a nature photographer? Would the photographer hold a copyright on that photograph?
That’s just what happened to photographer David Slater. In Indonesia, he set up a camera, hoping that a group of macaque monkeys would approach and give him a close-up view. One of the monkeys climbed on the camera, and took a photo of itself.
Penn Law professor Shyamkrishna Balganesh examines this and other similar situations in his article “Causing Copyright,” which appears in the Columbia Law Review. The Copyright Office denied Slater and the work copyright protection, declaring that the work needed to be created by a human to be eligible. The case, Balganesh argues in his article, shows that copyright law does, in fact, have an important causal dimension, and he argues for the development of a requirement called “copyrightable causation” as a prerequisite to copyright protection.
Balganesh’s scholarship focuses on understanding how intellectual property and innovation policy can benefit from the use of ideas, concepts and structures from different areas of the common law, especially private law. He is also a Co-Director of the Center for Technology, Innovation & Competition (CTIC).
“Everyday scenarios of creative production that routinely give rise to potential claims of authorship embody important questions of causation,” writes Balganesh. “And yet, copyright law chooses to address the question of causation only indirectly (and begrudgingly).”
He gives the example of an artist who accidentally knocks over paint to create an appealing design on someone else’s canvas. In most cases, copyright law examines situations from the doctrine of “originality,” which considers if the work was independently created and requires a minimal amount of creativity from the claimant. That doctrine, however, isn’t sufficient when the process of creation is critical, and copyright law incorrectly presumes that process to be uncontroversial.
Copyright law possesses a “latent theory of causation,” Balganesh argues, but overtly acknowledging the role of causation would better serve the law. He proposes the requirement of “copyrightable causation” as a prerequisite to copyright protection.
“The requirement would bring into sharp focus the act — rather than just the result — of authorship and move copyright doctrine and thinking away from its singular emphasis on the ‘work,’” he writes. “Authorship would in the process re-emerge not just as a symbolic ideal within the system but also as a substantive feature of copyright doctrine that plays a significant role in determining claimants’ rights.”
Because the requirement possesses a connection to the common law of torts, the courts would be the best venue to develop it, rather than through congressional intervention, he explains, and it would also need to work in tandem with copyright law’s established requirement of originality.
“For a work to qualify for copyright protection as a work of authorship,” Balganesh writes, “the work would have to be the result of human agency that is treated as causally relevant to, and sufficient for, copyright law.”
Tort law possesses valuable structures that would be useful in the determination of causality in the context of copyright law, Balganesh explains. The use of causal inquiry in tort law’s determination of negligence could be used for copyright law. And holding an actor responsible for a consequence to determine liability could be used as well.
Causally relating the work in question to an actor’s creative actions would be the first step of the copyrightable-causation requirement, which could function much like tort law’s cause in fact requirement. The second step, much like tort law’s proximate cause requirement, would examine whether those actions are sufficient to identify the actor as causally responsible for the work created.
“Causation has always been an integral part of copyright law’s basic entitlement structure, even if only rarely acknowledged as such,” writes Balganesh.
“Nonetheless,” he adds, “the reality remains that causal principles rarely ever rise to the surface as an overt part of copyright reasoning.”
Copyright law would greatly benefit from engaging with authorial causation, he argues. The addition of the copyrightable causation requirement would introduce greater “analytical coherence and normative consistency into important aspects of copyright doctrine.”
And by modeling the copyrightable causation requirement on tort law’s rules about causation, the idea that copyright law can look to other areas of common law would be strengthened, along with the notion that the courts have a role to play in the reform of copyright, despite its statutory origin. These are also points that Balganesh has made repeatedly in his prior work.
“[I]n so doing, they would do well to look to analogous ideas and concepts that courts have developed and employed with fecundity in other areas,” concludes Balganesh. “The principles of causation represent one such domain, in which logic, theory, and practice serve as convenient guides.”