Re: copyright under stress

On Tue, 06 Jun 2000, John Lederer <johnl[_at_]ibm.net> wrote:
>
> (1) Moral right. This was expressed as "If I create something it
> is mine, not yours, and not the public's"
>
> (2) Legal right. Copyright laws grant monopolies for public policy
> reasons (to expand knowledge).

I suggested that this dichotomy was a little US-centric and he replied:

On Mon, 12 Jun 2000, John Lederer <johnl[_at_]ibm.net> wrote:
>
> My legal history is weak, but isn't the history of copyright in
> the UK largely that of a statutory right (#2) until recent times?

It originally had both statutory and common law components but became exclusively statutory after the Statute of Anne 1709 (_Donaldson v. Beckett_ (1774) 4 Burr. 2408; 98 E.R. 257) -- at least for published works, for unpublished works, common law copyright was abolished around 1900 (1911 UK, 1914 Australia). So your most recent statement is correct, except "statutory right" is not the same as "Legal right. Copyright laws grant monopolies for public policy reasons". My point was that the basis for the statutory right outside of the US is more like "If I create something it is mine, not yours, and not the public's". There is rarely any rhetoric of granting monopolies for the public good.

I agree that the two terms you chose "Moral right" and "Legal right" are misleading summaries of the ideas encapsulated in your argument. You are really arguing about the philosophical basis for the existence of a set of rights (whether they be common law or statutory is irrelevant to the argument). Is it based on some perceived (1) "natural right" or on (2) a "grant in return for public benefit". The philosophical justification of the statutory right of copyright granted in the UK and similar jurisdictions has typically wavered between these with an emphasis towards (1). (2) is associated primarily with patent protection although not entirely excluded from copyright.

There are three types of right here:
(1) a property right by virtue of a natural right to own the product

    of one's labours (which is alienable like any other property     right) primarily protecting economic interests; (2) a monopoly granted by the state for public policy reasons (which

    is also of the nature of a property right) theoretically providing     a balance between economic interests and the public interest; (3) a personal right (like that of the Europeans) granted to the author

    primarily protecting artistic integrity.

Now there can be overlap here but I think you are bundling (1) and (3) in together and your original post suggested you meant (1) "moral right" rather than (3). I think (1) is representative of the UK tradition, (2) of the US tradition, and (3) of the European although all traditions borrow a little from each other. (1) is entirely consistent with "sweat of the brow", its almost a necessary consequence. "sweat of the brow" is less consistent with (2) and I didn't really offer an opinion on (3).

> The original impetus, as I recall, was to protect the capital
> investment in setting type.

That sounds closer to your definition of "Moral right" than "Legal right" to me! It was originally more interested in protecting the investment (capital and labour) of the publisher but very quickly in England (Statute of Anne 1709) used the rhetoric of protecting the author's investment, hence the "sweat of the brow" doctrine. In fact, with compilation copyright and published edition rights, it tends to protect the interests and labours of both now.

> How does the UK and Australia treat classic "sweat of the brow"
> cases such as directories?

Feist rejected the sweat of the brow doctrine in the US but since Feist, this doctrine has been affirmed in UK cases. Australian courts have actually cited Feist generally favourably, but I am not aware of an Australian case that has argued "sweat of the brow" directly since Feist so it could go either way but Australian courts follow UK precedent over US as a rule. We'll find out soon as there is a case before the federal court at the moment.

The classic statement on lists/directories is in _University of London Press_ [1916] 2 Ch 601 per Peterson J (a case concerning protection of a maths exam held to be original):

     Under the Act of 1842, which protected "books", many things which
     had no pretentions to literary style acquired copyright; for 
     example a list of registered bills for sale, a list of foxhounds 
     and hunting days, and trade catalogues; and I see no ground for 
     coming to the conclusion that the present Act was intended to 
     curtail the rights of authors.  In my view the words "literary 
     work" cover work which is expressed in print or writing, 
     irrespective of the question whether the quality or style is 
     high.  ...  The word "original" does not in this connection mean 
     that the work must be the expression of original or inventive 
     though.  Copyright Acts are not concerned with the originality 
     of ideas, but with the expression of thought.

     ...

     But the Act does not require that the expression must be in an
     original or novel form, but that the work must not be copied from
     another work - that it should originate from the author.

     ...

     It was said that they [the disputed authors] drew upon the stock 
     of knowledge common to mathematicans, and that the time spent in
     producing the questions was small.  These cannot be the tests for
     determining whether copyright exists ...

Other cases that do not require inventiveness include _Walter v. Lane_ [1900] AC 539; _Sands & McDougall v. Robinson_ (1917) 23 CLR 49 ("the personal skill of the reporter as well as his labour and expense were considered to be material considerations"); _Wilkins v. Aikin_ (1810) 17 Ves 422, 34 ER 162 LC; _Trusler v. Murray_ (1789) 1 East 363n; 102 ER 140n; and _Caird v. Sime_ (1887) 12 App. Cas. 326, 343.

> Don't I recall a recent WPTO position on databases implying that
> the theory of ownership by sweat is also recent?

I am not familiar with document to which you are referring but what do they/you mean by recent? Within 20 years? 100 years? It's certainly present in most of the cases cited above (I haven't checked the earlier ones).

Regards,
Tim

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