Re: droit de suite

On 04/10/2000, Neil Wilkof <wilkofnj[_at_]inter.net.il> wrote:
>
> On Fri, 07 Apr 2000, Tyler T. Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> >
> > On 04/06/2000, Part Sloane <patsloane[_at_]aol.com> wrote:
> > >
> > > On 04/06/2000, Jon Noring <noring[_at_]netcom.com> wrote:
> > > >
> > > > Yes, this is radical, but I present it as a counterweight to the
> > > > scary "copyright is a natural right" crowd on this mailing list,
> > > > whose motives are pure, but who are, in my opinion, very
> > > > short-sighted and don't see the long-term negative ramifications
> > > > of their position.
> > >
> > > I don't believe the concept of "natural rights" plays much of a role
> > > in American law today. Could you be thinking of the 18th and 19th
> > > centuries, when the term was bandied about a lot?
> >
> > To the contrary: virtually all of the changes made in U.S. law from
> > 1976 to the present have been inspired or justified, directly or
> > indirectly, by the natural rights view. In particular, all of the
> > changes made to help "harmonize" U.S. law with European law have been
> > in the direction of making U.S. law more "natural rights" oriented
> > and less "incentive" or "utilitarian" oriented.
> >
> > Examples: The change from a registration-and-notice based system to
> > automatic protection from the moment of fixation; the change from
> > registration-based renewal to automatic renewal; the change from a
> > fixed term to a term based on the life of the author; the Sonny Bono
> > Copyright Term Extension Act; protection for architectural works;
> > restoration of foreign copyrights; anti-bootlegging legislation;
> > digital public performance rights for sound recordings; and moral
> > rights legislation.
>
> It is not clear to me why all of the examples are instances of a
> "natural rights" orientation. Maybe you could explain further.

The "utilitarian" premise is that copyright is necessary only to ensure that authors and artists have a financial incentive to create new works. From that principle, it follows that if the work would be created anyway, no copyright need be provided. Consequently, U.S. copyright law required that an author claim copyright by publishing with notice. If you didn't claim it, U.S. law presumed that you were motivated by something other than copyright, so you didn't get a copyright. But when protection arises automatically upon fixation, copyright seems to spring from the mere fact of authorship, which is the natural rights view.

Another purpose of the utilitarian view is to place works in the public domain as soon as possible, so they will be free for others to draw upon in creating new works. Renewal accomplished this purpose, because only highly successful works were renewed; most works fell into the public domain upon the expiration of their first term. By requiring registration as a condition of renewal, U.S. law made you demonstrate that you were motivated by money by registering your renewal; if you weren't, then the work was placed in the public domain. Under a natural rights view, you're entitled to be paid if you created something, whether or not you were motivated by the money. Hence, automatic renewal.

Fixed term: place the work in the public domain at the earliest possible date (utilitarian view). Term based on life of author: copyright springs from the mere fact of authorship. Copyright term extension: since an author is entitled to be paid from the mere fact of authorship, why limit the term? Extend it as far as possible.

Need I continue?

On April 11, 2000, Robert Rotstein <bob.rotstein[_at_]gte.net> wrote:
>
> Alternatively, these changes -- albeit expansions of copyright
> -- arguably have little to do with the natural rights of the author.
> Rather, in the context of the historical trichotomy of
> "author/publisher/consuming public," all of the above changes seem
> to benefit the "publisher," that is, the studio, producer, internet
> company.
>
> Under the 1909 Act, many motion picture companies lost rights
> because of technical failures to renew or to include proper notice.
> The 1976 Act's abandonment of these formalities inures to the benefit
> of the company. Moreover, the change from a fixed term to a period
> that ends decades after the author dies likewise tends to favor the
> corporate distributor, not the deceased author. The most publicly
> visible works affected by term extension are famous characters
> (especially animated characters) and classic motion pictures and
> songs -- works often owned by large entities. I would think that
> anti-bootlegging legislation, digital performance rights, and
> restoration of foreign copyrights benefits the corporate "publisher"
> as much as the author.
>
> Finally, although I agree that moral rights legislation arises
> out of a natural rights theory, the United States has not yet adopted
> legislation that has an impact on mass produced works. Thus, something
> other than the "natural rights" theory is at work.

I fully agree with you as a practical matter. My point was that the rhetoric that is being used to justify these changes is a natural rights view, rather than the traditional utilitarian view of U.S. copyright law.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Wed Apr 12 2000 - 22:28:20 GMT