Re: True or False Question (Copying the copyrighted public

On 97-02-20, John Lederer <johnl[_at_]ibm.net> wrote:
>
> I am interested in your use of the word 'property'.
>
> Would you regard the temporary monopoly granted by the copyright laws
> as a property right entitled to full Fifth amendment protection? For
> instance, if Congress decided to expand fair use for works in being
> might that be a taking under the Fifth amendment?
>
> Could Congress shorten the term of copyright for works in being?
> Could the fact that the right is a property right provide an avenue
> to avoid the restrictions of the copyright clause's purpose,
> i.e., if something is my property, then I can generally do with it
> as I will, even if the result is to block the progress of science.

I believe that an author's copyright is entitled to fifth amendment protection. There is a line of cases dealing with copyright protection for private works which are "adopted" by government, for instance, a privately drafted zoning map. The first of these cases was BOCA [sorry, I don't remember what BOCA stands for or who was on the other side] in which the 1st Circuit suggested in the context of a preliminary injunction hearing that the copyright was lost when a privately created work is enacted into law. All of the subsequent cases that I am aware of, including CCC v. McLean Hunter (2d Cir.), Practice Management v. AMA (D. Cal), [i have a list of others back in my office] have stated that the fact that the government adopts a work does not deprive the copyright owner of his copyright. At least one of the cases [I think CCC] suggested that a contrary result would constitute a taking under the Fifth Amendment.

As for the copyright holder taking actions which are counter to the progress of science, such occurs all the time. For instance, it is up to the copyright holder to decide when and whether if at all to publish a work, and certainly could refuse to publish for the life of the copyright works which would indeed advance science.

Bob Penn
<thresshold[_at_]aol.com> Received on Sat Feb 22 1997 - 16:05:15 GMT