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

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.

Leaving aside the natural rights issues, this still isn't a correct statement of US law. First, it's not enough to be a "literary work"; it has to be "original". In most cases the author obtains rights at the moment of fixation, but not in all cases, e.g., work made for hire, employee of the federal government, etc. The fact that there are so many details limiting the applicability of the statute is important, and should not be glossed over. Rather than conceptualizing it as a generic "property" right (even though that's our common misuse of language), we might better conceptualize it as a bundle of specific but limited rights granted to the author by the federal government.

> 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?

Once we divorce IP from (real) "property," we no longer are stuck with confusions such as this. Congress may have some (non-Constitutional) obligations to maitain an existing stable regime, but it is not obliged to analogize ownership concepts drawn from land or furniture to databases.

"Property" in English has several meanings apart from ownership, but the confusion over the word gives lots of opportunity to expand the notion of ownership. Any thespians among us? Would you claim that a play automatically owns all the "properties" (today, more familiarly "props")?

As a practical matter it's of course plausible to analyze current practice in the U.S. in terms of "ownership" of IP, but if you do so you should be aware that you're biased your conclusions in one particular direction.

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