On 03/29/2000, Eric Eldred <eldred[_at_]eldritchpress.org> wrote:
>
> On Mon, Mar 27, 2000, Bernard Katz <bkatz[_at_]uoguelph.ca> wrote:
> >
> > On Sun, 26 Mar 2000, Joseph P. Riolo <riolo[_at_]voicenet.com> wrote:
> > >
> > > Copyright (as well as patent) is built on the concept of
> > > property, that is, land. Like land, copyright comes with
> > > a set of rights. When a copyright owner loses copyright in
> > > a work/property, the ownership of the work/property reverts
> > > back to the public.
> >
> > I think setting out analogues between land use and ownership and
> > copyright use and ownership is at the *least* highly problematic.
> > It has been thoroughly aired on this list and I won't burder folks
> > with any sort of replay! Once statutory copyright was introduced
> > in the U.K. with the Act of Anne (1710?), analogues with land became
> > imo, moot.
>
> The word "domain" does seem to imply some sort of positive
> ownership similar to land property. We have seen here some who
> say this means that the "property" is "owned" by "everybody" --
> or by "nobody." (Though nobody apparently has claimed that it is
> the government who owns the "public" property by default, though
> often that is the assumption in land property.)
>
> There are many problematic aspects to these concepts.
>
> One thought is that it's not really property, because it is not
> really ownable by anybody. So in that sense it is not really
> "public" because it is not "domain." As Mr Katz suggests, better
> dump the concept? If it has no meaning in the law, what is its
> utility? But if it is misleading, what concept might replace it?
>
> I found the book "Slide Mountain" to be a useful work to try to
> help clarify the issues (besides being quite entertaining --
> maybe because it's by a historian rather than a lawyer). Theodore
> Steinberg in this book produces and discusses a number of real
> paradoxes in land property law generated by the odd idea that
> people can really master nature and thereby "own" land ("real")
> "property". What happens when the river moves its course? -- read
> the book and try to decide for yourself. (ISBN 0-520-20709-2, U
> Cal Press, 1995 paperback)
The whole debate touches the theoretical dogmatics of copyright.
In continental Europe we use mostly the droit d'auteur, Urheberrecht, or authors right.It defines intellectual property as a right of the author. In Austria (and I think in Germany) this (property) right can NOT be transferred. What the publisher receives is the right to USE the work (an intellectual creation independent of fixation). The anglosaxon copyright is owned by the publisher by contract or by the software company by 'work for hire'.
A public domain work translates to a work with free usage.
Other rights (moral rights) remain with the author.
Even in US law you could not rewrite parts of a text in the public domain, and use it to defame the original author or his intentions. You could not use it write your name under it and sell or distribute it as YOUR work. Strengthening authors moral rights was one of the points which came to the US with the acceptance of the Berne treaty.
Intellectual property is a man made concept (fairly recent) like property in land (were public pastures were not given up easily before the use of arms). Fences had to be defended. Copyright owners (not necessarily authors) defend their fences and increase their pastures.
Droit d'Auteur is based on concepts of natural law in the enlightenment for the benefit of the creator. The first formulation of Copyright removed a monopoly(property) of printers on all printed works (including those from antiquity) which was in itself man made.
In practice the difference is not very relevant. If a company owns copyright or monopolizes usage rights comes to the same.
What ownership (of land or works) or usage rights imply legally depends on the bundle of rights given to the different parties (authors, recopier, state, public).
Peter Sint
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