Re: copyright and natural law?

On 9/12/98, Albert Henderson <noblestation[_at_]compuserve.com> wrote:
>
> On 10 Sep 1998, Mark Lemley <mlemley[_at_]mail.law.berkeley.edu> wrote:
> >
> > 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.
>
> My copy of the US Constitution uses the word "secure," not "grant."
> Let me quote, "The Congress shall have the power ... To promote the
> progres of science and useful arts, by securing for limited times to
> authors and investors the exclusive right to their respective writings
> and discoveries;"
>
> Where did this "grant" idea come from? I would be interested to know
> where we went wrong.
>
> > 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].
>
> Corporate authors are still authors. They are clearly motivated by
> whatever security is offered by exclusive rights. The employees who
> are controlled by the corporate author get paid at once while the
> corporate author invests in the work product and must work for and
> wait for a return. Their exclusive rights start prior to publication,
> if indeed publication occurs at all. Is there a problem with this?
>

There is no question that corporations are incented by intellectual property rights; but of course that's perfectly consistent with the classic US economic incentive story, *not* with an inherent ownership interest. I don't think you can make a plausible case that all the situations denominated "works for hire" are really cases of the employer being the author. In particular, commissioned works which the parties agree to treat as "for hire" may involve no substantive intervention or participation by the "author" chosen by the copyright Act.

If your constitutional argument is intended to suggest that the Constitution merely "secures" rights that already exist, rather than permits Congress to create new ones, I must disagree. Congress is given the "power" to create intellectual property laws, but it was never under any obligation to do so. The intellectual property rights we have today are in that since precisely the result of a statutory grant of authority.

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 - 23:24:18 GMT