The Root of Title to Copyright in Works

For real or chattel property that possession is at the root of title is clear as a matter of legal history. For copyright in works, the answer in legal history to the question of what is at the root of title is not so clear and that lack of clarity has rendered basic aspects of modern law contestable. This essay seeks to address a question that is not typically put: what is at the root of title to copyright in works? The contestability that swirls around this question, which in part is also a ‘history war’, can be distilled in a generalised way. One side perceives modern statutory copyright as having its provenance in common law, which places human authorship at the root of title. The competing view is premised on a public-regulation philosophy of copyright and argues that foundational common law copyright is apocryphal. An inquiry into the root of title to copyright involves the relationship between any authorial right at common law and statutory copyright. The essay commences with a temporal exposition of common law copyright, moving onto the related copyright questions of what amounted to publication and what lay at the root of statutory title – both of which emerged most acutely in the mid-19th Century. It concludes with some discussion about the extent to which the Berne Convention effectively triggered doctrinal resolution of these questions