Re: Does U.S. and foreign copyright law have contradictory goals?

From: <johnl[_at_]ibm.net>
Date: Wed, 18 Sep 96 09:42:42 -0400

On 09/17/96, wing_m[_at_]southampton-institute.ac.uk said:
>
> As for US law, I confess ignorance, although I have the impression that
> the US has a common law type system by looking at USC 101. Certainly if
> this impression is wrong I will no doubt be corrected.

Thank you for the information, Mark.

I do not pretend to any great expertise in this field, but my impression is that the theoretical basis of U.S. copyright is subtly but fundamentally different.

If in Europe the principal purpose of copyright law is to protect the property rights of the author, in the U.S. that is not the fundamenatl pupose. The fundamental purpose in the U.S. is the public interest in access to knowledge:

     Congress shall have the power...to promote the progress of science
     and the useful arts, by securing for limited times to authors and
     inventors the exclusive right to their respective writings and
     discoveries. U.S. Const., Art I, Sec. 8(8)

(in the context of the time, science would be equivalent to our modern "knowledge")

 The U.S. Supreme Court has emphasized this:

     The sole interest of the United States and the primary object in
     conferring the [copyright] monopoly lie in the general benefits
     derived by the public from the labors of authors. Fox Film v. Doyal

If I may be allowed a rude simile, copyright law is thus something akin to the biblical injunction to allow the oxen to eat some of the grain that they thresh -- not out of kindness but because it better enables them to thresh grain. Authors are given a monopololy solely to encourage them to produce knowledge -- not because of some natural property right in an idea or expression of that idea.

In that context, extensions of copyright, expansions of its coverage, etc. should only be judged on the basis of whether or not they are desirable to create more knowledge or better public availability of knowledge. Moreover, because copyright law abridges the fundamental right to free speech (and our natural aversion to monopolies), the test ought to be a rigorous one of "does the public gain more from the expansion of copyright than it loses."

An extension of the period of copyright for existing works is an example of a change that would obviously fail this test, though it might be acceptable were the primary goal the European one.

I suspect that this difference in theoretical underpinning should make it very difficult to reach international agreement on copyright. Right now, because our domestic politics seem to have given a certain primacy to Hollywood and information publishers in setting copyright policy, I think the differences are not as apparent as they might otherwise be.

Richard Stallman has this idea that American copyright is "different" in its theory much better developed.   

Regards,

John Lederer
<johnl[_at_]ibm.net>

Oregon, Wisconsin
(Where the citizens are deeply troubled over the societal implications of the town's first stoplight) Received on Wed Sep 18 1996 - 15:06:07 GMT

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