Re: New Work Types Problem (Was: Dead Sea Scrolls, Sweat of Brow Once Again)

Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> I too am not terribly troubled by saying that if you want to establish
> a new form of copyright, it shouldn't apply to works created before the
> law was passed. My point was a descriptive rather than a normative one
> -- I think (though I haven't checked it out yet) that as we have brought
> new types of works into copyright, we have included all examples of
> those works, not just ones created after the statute was passed. For
> example, the copyright act didn't include sound recordings until 1971,
> but I think sound recordings first made before then are now protected
> in the US. Certainly this retroactivity is the central feature of 104A.
> So perhaps we shouldn't be doing it, but we seem to *be* doing it.

This all stems from a problem common to both US and UK copyright law - an obsession with categorising works into neat little boxes (the UK scheme is, arguably, even more complex than the one in the US and has certainly not kept pace with development - no a/v category, for example).

By contrast, many civil law jurisdictions take as their starting point the proposition that anything in the "literary or artistic domain" (cf. Berne Convention) can be a protected type of work but without actually explicitly categorising those works or, if work types are named, they are only done so as inclusive examples rather than exclusive/closed categories.

Example: France

Art. 112-1, Intellectual Property Code 1992 as amd.

Author's right protects all works of the mind regardless of form of expression, merit or purpose

Art. 112-2

*in particular* [note emphasis] it protects "books, pamphlets..." etc.

[As a side note, I should add that France also has no legal requirement for fixation as a "sine qua non" for protection - sensibly, the French say that fixation is simply an evidential point (i.e. you have to have "documentary" evidence of the work in which you claim rights to show the nature and scope of rights claimed for the purposes of infringement proceedings)]

Let me say at once that the civil law approach is not without its own problems (e.g. how far does the "literary and artistic" domain stretch? how does one *really* determine *deductively* whether something is a protected work?) but that it is, nevertheless, an interesting contrast to the common law approach.

Gary Lea,
Herchel Smith Junior Research Fellow,
Queen Mary & Westfield College, University of London <g.r.lea[_at_]btinternet.com> Received on Thu Feb 26 1998 - 12:02:29 GMT