Owning Form, Sharing Content: Natural-Right Copyright in the Digital Environment

A cornerstone of copyright law is the so-called ‘idea/expression distinction’ according to which copyright is not a property in ideas but only a (temporary) protection of their expression. This distinction, which seems to have now reached a crisis point in the digital environment, has traditionally different rationales in common law and in civil law countries. In the latter it is grounded in the natural-law notion of the creative work as a joining of ‘form’ and ‘matter’ expressing the personality of its author. In Anglo-American copyright, the dichotomy appears instead to have an utilitarian justification – specifically, that of ‘balancing’ authors’ private interest (in claiming property in their work) and the public interest (in being free to make use of the work and to build upon it). The paper explores these two rationales and their underlying principles. In particular, it focuses on the concept of ‘knowledge’ emerging respectively from the natural-law and the utilitarian approach. It finally suggests that the natural-right approach to copyright is more suitable to the present day ‘digital world’ than the utilitarian one.