RE: The Era of Perpetual Copyright

A roman system jurist would probably distinguish between property rights enjoyed by the public at large and liberties. Liberties are however possession-protected, as anyone can (in some jurisdictions) claim possession (even not exclusive...) of a throughway if a squatter prevents the liberty to use it.

Therefore, possession, as the free use of a public domain utility may be recognized as an economic right even though property does not actually falls into the hands of the public at large.

This analysis of public domain (on American legal concepts) has been very convincingly advanced by the market failure theorists.

At 08:42 23/01/03 -0500, you wrote:
>On Wed, 22 Jan 2003 17:15:15 -0800, Tyler Ochoa wrote:
> >>>>vrkoven[_at_]world.std.com 01/20/03 05:04AM >>> wrote:
> >Since Congress now has unfettered power to enlarge existing copyrights,
> >surely they have the same power to repeal the extensions.
> ><<<<<
> >
> >I agree with Professor Clifford that the Court would probably find that
> >copyright is "property" that could not be "taken" from the copyright
> >owner without just compensation. Reducing existing copyright terms
> >would probably be held unconstitutional under the Fifth Amendment.
> >[Congress could, of course, reduce the term prospectively for new works,
> >but what is their incentive to do so?]
> >
> >The result is a ratchet effect: copyright terms can be extended, but it
> >is extremely unlikely that they will ever be reduced.
> >
> >It may surprise some on the list, but I agree that Congress should not
> >be able to reduce the term of an existing copyright without just
> >compensation. What I want to know is why the public's prospective right
> >to use a work when it enters the public domain is not also "property"
> >that is "taken" away from the public when the copyright is extended.
> >
> U.S. courts (and, thus, to a great extent U.S. Law) have generally been
>hostile to the concept that the public at large can have property rights. A
>good example of this is in the area of prescriptive easements. If a
>particular individual uses someone else's property for long enough, an
>easement can be created; if the same use is made by the public at large, no
>easement results, although a few states recognize a customary use that acts
>like an easement for the public, e.g., State ex Rel. Thornton v. Hay, 462
>P.2d 671 (Or. 1969). Similarly, although public rights to a expressive work
>that is no longer copyrighted is recognized, I would be surprised if the
>courts recognize this as a property interest absent direction from Congress.
>
>--
>Ralph D. Clifford
>Professor of Law
Received on Fri Jan 24 2003 - 14:02:07 GMT