Collaborative production of expressive content accounts for an ever growing number of copyrighted works. Indeed, in the age of content sharing and peer production, collaborative efforts may have become the paradigmatic form of authorship. Surprisingly, though, copyright law continues to view the single author model as the dominant model of peer production. Copyright law’s approach to authorship is currently based on a hodgepodge of rigid doctrines that conflate ownership and control. The result is a binary system under which a contributor to a collaborative work is either recognized as an author with a full control and management rights or a person who is deemed a non-author with no rights whatsoever. We argue that the doctrines and judicial precedents that govern the all-important issue of authorship are out of step with authorial reality. And the cost to the copyright system is enormous. As we show in this Article the misalignment between copyright law and authorial reality is both inefficient and unfair: it harms incentives to create, it denies reward to contributors, it leads to under-utilization of content and it creates excessive litigation.
To remedy this state of affairs, we propose a new legal construct, which we call "copyright trust." In designing this new tool we draw on insights from property and corporate theory — two areas of research that have long dealt with the challenges of collaborative enterprises and co-ownerships. The doctrine of copyright trust is predicated on the insight of decoupling ownership from control. Essentially, it would empower courts to appoint one contributor as an "owner-trustee" with full managerial rights and the exclusive power to control the use of the work, while recognizing all other contributors as "owner-beneficiaries," who would be entitled to receive a certain percentage of the proceeds from the work. Copyright trusts would enable courts to retain the benefits of having a single owner without sacrificing the rightful claims of other contributors who would be entitled to receive a just reward for their efforts. The proposed doctrine of copyright trust would supplement, not replace, current doctrine. It is designed to enrich the menu of options available to courts in deciding authorship issues. The addition of our solution to the judicial toolbox would not only make it richer, but would also infuse current law with much needed flexibility that is sorely missing from other authorship doctrines.
Bell, Abraham and Parchomovsky, Gideon, "Copyright Trust" (2015). Faculty Scholarship at Penn Law. 1442.