automatic copyright protection or IP rights granted by "the public"?

(Was: copyright expiration as a spur to creativity)

Attention: In order to better seperate the varoius topics now discussed under the same heading, I changed the subject "copyright expiration as a spur to creativity" into "automatic copyright protection or IP rights granted by "the public"?".

On Thu, 10 Sep 1998, Dan L. Burk <burkdanl[_at_]shu.edu> wrote:
>
> On 09/09/98, Moritz Roettinger <moritz.roettinger[_at_]dg23.cec.be> wrote:
> >
> > No. Intellectual property in literary works belongs right from the
> > beginning to the author - and only to him and originally to him. This
> > property right is not a derivated right and is not granted to him by
> > anybody.
>
> This may possibly be the case in Europe, but is clearly not the case
> under U.S. law. The constitution grants Congress the power to secure
> rights to authors, but there is no particular reason that they must
> exercise it. They could just as easily (as Thomas Jefferson advocated)
> leave the public to take whatever it wanted.

There might be a misunderstanding. When Congress, in accordance with the US Constitution, adopted the Copyright Act, it set out the scope and rules for copyright protection in general but did not grant any license to the author. An author automatically becomes the owner of copyright for his works in the moment of the creation of the work without any additional procedure or application. Isn't this what the Copyright Act says? I am not - for the moment - arguing in favor of a sort of "natural right", I aknowledge that copyright protection only exists within the borders of the Copyright Act (and, of course, other relating legislation). But within these borders, copyright protection exists as from the creation of the work.

I never said that an author is obliged to exercise his rights conferred to him under the Copyright Act and other relevant legislation. But what does that mean? The author is, of course, not obliged to grant licenses or assign the copyright to anybody, he may choose to only partially exploit his rights or not at all. And if he chooses not to exploit his rights at all, he still remains the owner of copyright, and the work will not fall into public domain just beacuse the author does not want to exercise his rights. I presume that this is also true for US law, isn't it?  

> > In the moment of the creation of the work he becomes the author and
> > automatically the owner of copyright. It is certainly not the public
> > who acts in whatever way "generously". The public has nothing to say.
>
> This is, again, entirely false under U.S. law. The public, through their
> elected representatives, have granted IP rights to authors. They need
> not do so.

See above. "The public" through Congress laid down the legal rules for copyright protection, but did not grant a specific right personally to a specific author. "The public" once decided that copyright protection exists from a certain point in time for a certain period and with the content they laid down in the laws. With regard to an obligation for "the"public" or more specifically for Congress, I wonder whether the US Constitution does not provide the protection of property (including intellectual property)? If so, is this general property right (protected by the Constitution) not part of the human rights? If there is a constitutional protection of property (and of intellectual property), Congress is obliged to enact the necessary legislation to effectively protect property. Thus, "the public" respectively Congress was obliged to do so.

I would welcome comments on these remarks from whomever of the list including Mr Phillips and Mr Burk.

Moritz Roettinger

Dr Moritz Roettinger LL.M.
European Commission, Brussels
Universitites of Vienna and Saarbruecken moritz.roettinger[_at_]dg23.cec.be Received on Fri Sep 11 1998 - 11:47:45 GMT