Re: copyright and natural law?

On Mon, 14 Sep 1998, Mark Lemley <mlemley[_at_]mail.law.berkeley.edu> wrote:
>
> On 9/11/98, Moritz Roettinger <moritz.roettinger[_at_]dg23.cec.be> wrote:
> >
> > 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).
> >
> ************
>
> 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?

I see in a "natural right" a right which is according to the general appreciation vested in somebody without having necessarily been fixed by positive law. Example: human rights. They are protected by the constitution, but even without such positive law they are generally regarding as "pre-existing".

Copyright is to my mind not a natural right, but a right based on statutory law. It is the Copyright Act that creates this right. On that basis, the author of a copyrightable work (original etc.) becomes the owner/proprietor of copyright automatically in the moment of the creation of the work without any other legal or administrative act. Thus copyright is an "original right" ("droit originaire", "originares Recht").

In contrast to that is the "derivated right" ("droit derive", "abgeleitetes Recht") which is granted (through an individual legal act) to a person, such as licenses.

Does this separation makes it clear what I wanted to say?

> Regarding works for hire,

I prefer separating the discussion on works made for hire since the concepts between US and European law differ too much.

Moritz Roettinger
<moritz.roettinger[_at_]dg23.cec.be> Received on Tue Sep 15 1998 - 14:02:40 GMT