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Created Facts and the Flawed Ontology of Copyright Law

2007; Columbia University; Volume: 83; Issue: 1 Linguagem: Inglês

0745-3515

Justin Hughes,

Legal Systems and Judicial Processes

It is blackletter doctrine that facts are not copyrightable: facts are discovered, not created—so they will always lack the originality needed for copyright protection. As straightforward as this reasoning seems, it is fundamentally flawed. Using the “social facts” theory of philosopher John Searle, this Article explores a variety of “created facts” cases— designation systems, systematic evaluations, and privately written laws—in which original expression from private individuals is adopted by social convention and generates facts in our social reality. In the course of this discussion, the paper places facts in their historical and philosophical context, explores how courts conflate facts with expressions of fact, and explains the difference between social facts created by expression and the “facts” of literature and fiction. Having established that the copyrighted works discussed in these cases produce facts, the question arises whether copyright’s merger doctrine eliminates the copyright protection—a result that is both seemingly harsh and seemingly necessary. This Article proposes a recalibration of the merger doctrine to acknowledge that “created facts” are a unique situation in which the incentive of copyright is needed not just to generate the expression, but also needed to generate the facts. © 2007 Justin Hughes. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format, at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision and copyright notice. * Professor of Law, Cardozo School of Law; Director, Intellectual Property Law Program. The author thanks Robert Brauneis, David Dolinko, Michael Madison, David McGowan, David Nimmer, Pam Samuelson, Clyde Spillenger, Eugene Volokh, Clark Wolf, and Leif Wenar for helpful comments at different stages of this Article’s long gestation. The Article benefited more recently from discussions at talks and conferences at Santa Clara University; University of California, Berkeley; and George Washington University. The author also thanks Taylor Ball, Shelley Cobos, Jesse Fox, David Morrison, and Wendy Wang for their research assistance. The remaining shortcomings are the exclusive intellectual property of the author. Email: Hughes@yu.edu or Justin@justinhughes.net.