Re: actuaries and copyright extension

>On 4/18/96, Karjala, Dennis wrote:
>>
>> John Noble writes:
>>>
>>> I thought that a subsidy was the dedication of a public asset for
>>> private benefit, while the dedication of a private asset to public
>>> use was, in other circles, called something else.
>>
>> On what ground do you call copyright rights a "private asset"?
>> Without a public statute, there would be no such rights. On what
>> ground is the public required in such a statute to give to the
>> copyright owner more than the benefit the public receives in return?
>
> As I replied to Prof. Heald:
>
> This is the nub of it, I guess. Its the fundamental point on which our
> points of view diverge. And all of the debate boils down to 'original
> works are public goods' vs. 'original works are private property.'
>
> If I understand your point: its not a private asset because the creator
> enjoys rights only by virtue of (publicly ordained) legal fiat. But
> isn't that true of everything. I only enjoy the privacy of my home by
> virtue of the 4th Amendment and the common law of trespass. Either that
> or a bigger gun. Does the constitution and the Copyright Act _create_
> or _recognize_ a property interest in authored works? Do "Grand Theft--
> Auto" statutes _create_ or _recognize_ a property interest in my car?
>
> J. Noble
> <jnoble[_at_]dgs.dgsys.com>

As an old property teacher, I can't resist throwing out that "bundle of rights" concept. Before the Statute of Anne, or more particularly the Constitution for those of us in the U.S., whatever the natural law bundle associated with creative works contained, it did not contain a right of exclusivity. That part of the bundle is strictly a statutory creation and of limited duration. Even after the copyright or patent term expires, the creator or her heirs still has the entire natural law bundle and can still exercise them.

Exclusion was a part of the bundle attached to tangible property very early in the game; it was not part of the bundle attached to intellectual property in the days of Homer or Shakespear.

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Buford C. Terrell                       1303 San Jacinto Street
Professor of Law                              Houston, TX 77002
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