Re: True or False Question (Copying the copyrighted public

On Fri, 21 Feb 1997, Ralph D. Clifford" <rdc[_at_]world.std.com> wrote:
>
> On Wed, 19 Feb 1997 John Lederer <johnl[_at_]ibm.net> wrote:
> >
> > On 02/18/97, David F. Crosby <DFC[_at_]lappinkusmer.com> wrote:
> > >
> > > granted give inventor's and author's property rights to transfer
> > > for value and give investor's a level of certainty with respect
> > > to the property rights they are investing in.
> >
> > 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 think that the use of the word "property" is appropriate and
> that 5th/14th Amendment protections do apply. If congress imposed
> new restrictions on the use of a copyright that go far enough, the
> courts could determine that a taking had occurred. I do not think
> that the analysis of whether a taking had occurred would necessarily
> be easy -- effectively, the court would have to examine its case law
> on regulatory takings, e.g., Nollan v. California Coastal Commission,
> 483 U.S. 825, as applied to copyrights/patents rather than real estate.
>
> There is some evidence that congress agrees with this assessment.
> If nothing else, the complexity of the transitional provisions from the
> 1909 Act to the 1976 Act reflect congress's desire to preserve, or
> expand, the rights an author had under the 1909 act. See 17 U.S.C.
> ss 303-04.
>
> As to your final point, that an owner of a copyright or patent can
> "block the progress of science," this is already true. If, for example,
> I have a patent on an invention, I can exercise my right to refuse to
> allow anyone to practice my invention for the duration of the term.
> Similarly for a copyright, I need not authorize its distribution in any
> form. Both would result in progress being delayed.

In my understanding of the United States law, I believe intellectual property rights are not necessarily treated by Congress in the same way as real property rights. For example, are intellectual property benefits/protections a creation of statute? If they are not a "right" but a "privilege"(creature of stautute) Congress can modify/amend the scope of privileges/benefits without constitutional challenge. If they are viewed by the courts as a "right" like life liberty and pursuit of happiness are basic "rights" or as referred to in the privileges and immunities clause, then Congress or administrative agencies like PTO, cannot amend, shorten, or eliminate them by regulation or Executive Orders, or statute.

L K Hopkins
Author, Clark Boardman
Intelliware International
Consultant, Intelliware Intern.
lhopkins333[_at_]gnn.com
612-730-8241 Received on Sun Feb 23 1997 - 19:01:18 GMT