Re: copyright and natural law?

On 14 Sep 1998, Mark Lemley <mlemley[_at_]mail.law.berkeley.edu> wrote:
>
> 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.

Yes, many contracts between author and publisher agree to call the work "for hire" even though the work may have been prepared and finished before the publisher ever saw it. This makes the statistics you saw inaccurate and unreliable. I also wonder about your source.

> 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.

I appreciate the scholarly contributions on this by you and others reviewing the history of authors' rights. Despite the twisting of the English language in the cases cited, it is apparent in every review that the laws recognized authors' exclusive rights over his/her work prior to publication.

Gary Lea <g.r.lea[_at_]btinternet.com> wrote, for instance:
>
> a) like its ancestral English common law, pre-Revolutionary state
> law recognised the notion of "common law copyright" - a right which
> offered potentially perpetual protection for a "work". I emphasise
> the word "potentially" here because the protection at common law
> lasted only so long as the "work" remained *unpublished*

Joseph Pietro Riolo <riolo[_at_]voicenet.com> quotes Justice M'Lean in _Wheaton and Donaldson v. Peters and Grigg_ (8 Peters 591)
>
> That congress, in passing the act of 1790, did not legislate
> in reference to existing rights, appears clear, from the
> provision that the author, &c. "shall have the sole right
> and liberty of printing," &c. Now if this exclusive right
> existed at common law, and congress were about to adopt
> legislative provisions for its protection, would they have
> used this language? Could they have deemed it necessary to
> vest a right already vested. Such a presumption is refuted
> by the words above quoted, and their force is not lessened
> by any other part of the act.

The practical control by which an author or inventor can deny his/her work to the world is a reasonable basis, I believe, for the exclusive rights of both authors and inventors. The plain meaning of the Constitutional language is clear in spite of a record that indicates straying from this position as early as 1790. Justice M'Lean determined not to recognize the authors' power to destroy or withhold, a power which is as plain as the sun in the sky. In my opinion, by preferring the language of the Act to that of the Constitution, he commited an obvious error.

By "securing" authors' rights for publication and inventors' rights for exploitation of their work, lawmakers encouraged dissemination and all that goes with it. Otherwise, in order to keep their rights, authors and inventors would be forced to _not_ publish.

On the other hand, you might call "fair use" including "library photocopying" a "new right" created by law. I don't see how it flows from Art. 1 Sec. 8 of the Constitution or common law.

If it took a few years for Congress to agree on its first copyright act, it may be because it had other priorities. The Copyright Act of 1976, I see, began with a bill proposed about ten years earlier. This was before the slashing of academic research forced universities to tighten their belts and demand an official endorsement of the economies of library photocopying.

Albert Henderson, Editor, PUBLISHING RESEARCH QUARTERLY <70244.1532[_at_]compuserve.com> Received on Tue Sep 15 1998 - 22:40:03 GMT