Re: public domain question

On Wed, Mar 29, 2000, Rod Dixon <rod[_at_]cyberspaces.org> wrote:
>
> On Wed, Mar 29, 2000, Karsten M. Self <kmself[_at_]ix.netcom.com> wrote:
> >
> > On Mon, Mar 27, 2000, John Lederer <johnl[_at_]ibm.net> 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.
> > > >
> > > > Don't quote me -- this is not a scholarly research.
> > >
> > > I was quite struck by this.
> > >
> > > Am I the only one who regards copyright and patent as basically
> > > a state granted monopoly -- i.e. having very little to do with
> > > property, and much more to do with a prohibition on competition?
> >
> > No. The monopoly aspect of copyright and patent (and also trademark)
> > are significant. From an economic perspective (my own bent), this
> > *is* the whole of the law. Even the language of III.8 "securing for
> > limited times to authors and inventors the exclusive right" -- an
> > exclusive right is a state-sanctioned monopoly.
>
> Quite true, but the fact that a limited "monopoly" (or, better still, a
> bundle of exclusive rights) is granted to the copyright holder does not
> negate the earlier point that copyright is conceptually similar to real
> property. I think conceptualizing copyright as property adds more to our
> understanding of what a copyright is than simply calling it a monopoly.
> There is a tendency to drain all of the useful meaning out of the term
> monopoly when you say all authors have at least one.

One problem with the Real Estate analogy is that Real Property Law abhors a vacuum. The end result of every Real Property problem is that someone is the owner. The expiration of copyright leaves no owner of the rights previously held by the author. The rights simply do not exist. Land never dissappears, or at least the law assumes that it doesn't. Even on public land the government has the right to exclude and the duty to maintain in many instances.

The IP/Real Property analogy is good up to this point where the IP ceases to exist. There simply is no analogy to this in Real Property.

Keith Taber
<keith[_at_]drylaw.com> Received on Fri Mar 31 2000 - 14:55:14 GMT