Re: Does I.P. law create a property interest

Ralph Clifford <rdc[_at_]world.std.com> wrote:
>
> On Sun, 23 Feb 1997, linda hopkins wrote:
> >
> > On Fri, 21 Feb 1997, Ralph D. Clifford" <rdc[_at_]world.std.com> wrote:
> > >
> > > 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.
> >
> > 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.
>
> Even though the right/privilege analysis of property has lost
> favor, it would sustain federal intellectual property rights as
> property. "[T]he owner of copyright . . . has the exclusive _rights_
> to do and to authorize any of the following . . ." Copyright Act, 17
> U.S.C. s 106. "[W]hoever without authority makes, uses or sells any
> patented invention . . . infringes the patent." Patent Act, 35 U.S.C.
> s 271(a). Both of these sections extend an absolute right to the owner
> of the I.P. As such, Congress would not be free to revoke or seriously
> limit existing rights.

It may be worth noting that Berne, in my understanding, is not (to say the least) focussed on property rights; but rather on authors' rights as rights of the individual (author).

This has, of course, very little indeed to do with US statute. But someone, somewhere, may be able to advance the argument that it _should_.

Mike Holderness
http://www.poptel.org.uk/nuj/mike Received on Thu Feb 27 1997 - 16:39:27 GMT