Re: copyright and natural law?

On 9/11/98, Moritz Roettinger <moritz.roettinger[_at_]dg23.cec.be> wrote:
>
> On Thu, 10 Sep 1998, Mark Lemley <mlemley[_at_]mail.law.berkeley.edu> wrote:
> >
> > 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. 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.
> > >
> > ***********
> >
> > With respect to Dr. Roettinger, while his natural law approach may
> > comport with some European laws, it is *not* the basis for U.S. law.
> > Copyright in the U.S. is explicitly an instrumental grant, designed
> > to give an incentive for authors to create. It is defined and
> > limited by statute; if there were no statute, there would be no
> > right of ownership. [And it's not even the case that the individual
> > who creates something is always, or even usually, the copyright
> > owner. Under U.S. law, the most recent statistics I have seen
> > suggest that something more than half of all copyrighted works are
> > in fact "works made for hire" in which the person who does the
> > writing gets no rights whatsoever].
>
> I did not say that it is a natural right. But please see my comments
> of today on that subject (under a different subject - apologies for
> confusing you with the change of subjects). As far as "works made for
> hire" are concerned, can't you say - also according to US law - that
> this is a so-called "legal license", i.e. copyright belongs in the
> moment of creation to the author who is by law obliged to license it
> to the employer etc.?
>

Sorry, I may have misunderstood your reference to a "property right... not granted to him by anybody" and existing at the time of creation. If it's not a natural right, what is its philosophical basis?

Regarding works for hire, the consequences of a work-for-hire determination are different than the consequences of a license or assignment. The duration of copyright protection is affected, as are the existence of moral rights, termination of transfer rights, and some others. So the law clearly doesn't treat works for hire as simply a pre-enforced assignment clause.

Thanks

Mark

Mark Lemley
Visiting Professor, Boalt Hall School of Law University of California at Berkeley (fall 1998) mlemley[_at_]mail.law.berkeley.edu
Professor of Law
University of Texas School of Law
Of counsel, Fish & Richardson P.C.
mlemley[_at_]mail.law.utexas.edu Received on Mon Sep 14 1998 - 18:40:15 GMT