On the Identity Trail - The Nexus of Intellectual Privacy and Copyright

For nearly three centuries since the enactment of the world’s first copyright statute, individuals have been free to travel the kingdom of copyright as countrymen, enjoying the delightful objects to be found there, in private and without any notice taken. Historically, neither copyright law nor copyright holders have interfered with individuals’ freedom to enjoy copyright works in private. This centuries-old relationship between copyright and privacy has changed dramatically in the recent past.

Copyright and privacy have increasingly come into conflict over the course of the past decade. This conflict has led to a diminishment of individuals’ privacy and autonomy in connection with their enjoyment of copyright works. Digital rights management (DRM) technologies that use surveillance and restrict individuals’ activities are a prime example of this conflict.

Failure to gain a richer understanding of the conflict and relationship between copyright and privacy may leave us with little or no room to travel our vibrant copyright kingdoms in private. Permitting privacy to be diminished in the name of copyright may also lead to the impoverishment of the very copyright kingdoms that we purport to be enriching in so doing.

This short ID Trail Mix briefly discusses why, quite apart from its intrinsic worth, authors’ intellectual privacy is and has historically been instrumental in furthering the goals of copyright. This ID Trail Mix raises the question of whether the rationale behind authorial privacy’s historical utility in promoting the goals of copyright can provide arguments in support of protecting individuals’ intellectual privacy in connection with their enjoyment of copyright works. The ultimate question posed here is what role individuals’ intellectual privacy could or should play in the copyright balance.

Copyright and privacy share a fascinating and complex historical relationship. At first blush, one might have thought that copyright and privacy have come to implicate one another only over the course of the past decade since the advent of digital networked technology. The kind of conflicts that have emerged in the recent past – the ones that involve conflict between copyright and individuals’ private enjoyment of copyright works – do appear to be a uniquely contemporary phenomenon. However, copyright and privacy also share a much older and more foundational relationship, a complementary relationship. For example, Sunny Handa has characterized privacy as one of the “theoretical pillars” of copyright. i

In “The Right to Privacy”, Warren and Brandeis sketched a picture of where copyright and privacy might lay in respect of one another as of 1890. In examining the nature and basis of the right to control the act of publication of a copyright work, Warren and Brandeis described how the right does not depend on whether the subject matter has any economic value or would otherwise be protected as intellectual property. In other words, the common law right to control the act of publication is not merely the right of control that copyright provides and nor is it motivated by protecting precisely the same interests as copyright is motivated by. Distinguishing the right from principles of private property, Warren and Brandeis identified the right as one instance of the more general right of privacy, the right “to be let alone”.

The aspect of the relationship between copyright and privacy identified by Warren and Brandeis is based principally on the distinction between published and unpublished works. Though not offering complete privacy protection (because facts could be disclosed without infringing copyright), the right of first publication of a copyright work is a privacy-like right protected at common law. Once published, the rights in the work became primarily rooted in copyright law.

In addition, there are a number of cases where copyright has been invoked to protect confidential information and in some cases what one might consider to be privacy interests. In these cases, which continue to arise, copyright has played an instrumental role in protecting privacy interests, typically in situations involving the attempted publication of personal materials such as letters. In a similar way, copyright has effectively protected privacy-related interests in the area of commissioned photographs and portraits.

Privacy can thus be viewed as playing at least two key roles in terms of furthering the objectives of copyright. First, privacy protects the act of first publication. This protection helps to encourage the development and expression of new ideas. Sunny Handa discusses this concept in the negative, noting the risk inherent in having less than absolute privacy protection in this area:

By avoiding the potential chilling effect described in this passage, an absolute privacy right can be seen as encouraging the development and expression of new ideas, which is part of the purpose of copyright. It creates a refuge for building ideas, an intellectual ‘breathing space’, a veil behind which authors can explore ideas and develop new expressions. This privacy right ultimately protects authors’ right to determine whether and when they will publish their expressions.

A second way that privacy contributes to the objectives of copyright law lies in the protection of moral rights. Although rights in a work are primarily rooted in copyright upon publication, this is not to say that privacy is no longer relevant. In jurisdictions with moral rights regimes, like Canada for example, privacy plays a role in copyright in so far as authors have moral rights to remain anonymous or to use a pseudonym. These are forms of a right of privacy. Moral rights contribute to the development and dissemination of new expression, at least to the extent that such rights encourage authors to create and disseminate works that they would not otherwise create or disseminate. Moral rights, and hence a form of privacy, can therefore be viewed as an important part of the incentive package that copyright offers to creators.

These are a few examples of ways that copyright and privacy share a complementary relationship in ways that further the goals of copyright policy. However, the privacy rights discussed thus far have been the privacy rights of authors. But what of the privacy rights of individuals who wish to access and use copyright works? Can their privacy rights possibly further the goals of copyright policy when in recent years they seem to have so often come in conflict with copyright holders? Can authorial privacy’s utility in promoting the goals of copyright be extended to arguments in support of protecting individuals’ privacy in relation to their enjoyment of copyright works?

Prior the conflicts of the recent past, individuals were free to roam the kingdom of copyright in private, without any notice taken. Copyright has traditionally not interfered with individuals’ freedom to access and enjoy copyright works in private. Rather than focusing on the private activities of individuals, copyright has heretofore been principally concerned with protecting publishers against copying by competing publishers. As Daniel Gervais explains, copyright law never used to concern itself with the private activities of individuals who access and use copyright works:

The fact that copyright was not meant to be routinely used in the private sphere is further evidenced by the fact that exceptions and limitations to copyright were also written in the days of the professional intermediary as the user. This explains why in several national laws, the main exceptions can be grouped into two categories: private use, which governments previously regarded as “unregulatable” (i.e., where copyright law abdicated its authority by nature)… Still today, there are several very broad exceptions for “private use” (e.g., Italy, Japan) that were adopted in the days when the end-user was just that, the end of the distribution chain. End-users have always enjoyed both “room to move” because of exceptions such as fair use and rights stemming from their ownership of a physical copy. There was thus an intrinsic balance that recognized that end-users who did not significantly affect the commercial exploitation of works by their individual use should not be on the copyright radar.

…

…[copyright’s recent] invasion of the private sphere is at odds with the history of copyright, where it never forayed except, as just mentioned, in the case of levies. There was an implicit recognition that copyright did not apply to end uses, even though formally users were making copies and, in rarer cases, performing or communication works. iii

Of course, as Gervais alludes to when he mentions ownership of a physical copy, it is worth emphasizing two additional reasons why copyright has not conflicted with privacy in the past. First, individuals typically did not have the means to infringe copyright works, let alone on a scale that would have an impact on the exploitation of the work – e.g. individuals could not very easily copy, distribute and sell thousands of books. Second, copyright holders have traditionally not had an efficient or effective means to invade the private sphere; there were no ways that they could track individuals’ access and use of physical copies of copyright works in order to prevent or detect illegal or unauthorized activities. The context in which copyright and individual privacy now interact is dramatically different.

Through exceptions like fair dealing, copyright law continues to attempt to carve out private space for individuals to access and enjoy copyright works. However, copyright holders increasingly have the legal and technological means by which to foreclose those spaces and to track individuals’ private activities. This applies not only in the case of online digital content delivery services, but now also in the case of physical copies of works like CDs, as demonstrated by the infamous Sony BMG rootkit controversy iv. The scope of private, anonymous and/or autonomous use previously afforded by the ownership of tangible goods is eroding.

On the other hand of course, many copyright holders argue that individuals increasingly have the means by which to infringe copyright on a scale that impacts the commercial exploitation of works. For example, in a matter of seconds, a single individual can perfectly copy and make a copyright work available to millions of people for downloading on a p2p network. For these reasons, some copyright holders claim that privacy-invasive measures aimed at responding to infringement are justified.

The modern copyright context thus requires us to consider the nature and scope of individuals’ ability and potential legal right to enjoy copyright works in private, anonymously and autonomously. Authorial privacy suggests that privacy can play a role in furthering the goals of copyright. However, copyright policy has heretofore not adequately considered the potential importance of individuals’ intellectual privacy – individuals’ ability and/or legal right to enjoy copyright works in private, anonymously and/or autonomously – in furthering the goals of copyright. If, as the Supreme Court of Canada has recognized, the purpose of copyright is utilitarian, aimed at balancing the economic rights of creators against promoting the public interest in the encouragement and dissemination of creative works, then we must ask what role individuals’ intellectual privacy could play in that balance.