Re: Copyrights as Property (Was: Copyright Extension Bill Passes Congress)

On 10/29/98, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> If Mr. Phillips means to say that a "copy" (a tangible object) is not
> property, I disagree. If Mr. Phillips means to say that a "copyright"
> (a set of intangible rights) is not property, I also disagree.

As do I.

> But if Mr. Phillips means to say that the copyright owner does not
> own all of the rights in a work (because the public also "owns"
> rights in the work, such as the right of fair use, the right to use
> ideas, etc.), then I agree. That is what I understood him to mean,
> but I admit I had a hard time following his argument.

I agree with most of this analysis, if that is, in fact, what Mr. Phillips meant to say. I made my posting with the impression that Mr. Phillips argued that the "copy" (his "copyrighted WORK") is not personal property. However, assuming that Mr. Phillips meant to say that the copyright owner does not own all the rights in a work ("copy") because (a) the public also owns rights in the work ("copy") as described above and (b) ownership of a "copyright" is distinct from ownership of a "copy," I still fall short of agreeing that these simultaneous rights extinguish either a "copy's" or a "copyright's" status as property, or alternatively convert such property into wholly public property (which is the argument that I think Mr. Phillips is advancing). Perhaps Mr. Phillips would be so kind as to further clarify his thesis for us so that we could better focus our discussion.

> Under U.S. law, the wealthy individual owns a COPY of the work, while
> the sculptor retains the copyright in the work. The COPY is treated as
> personal property for virtually all purposes, including transferability
> and taxation. In this instance, however, the owner of the copy does
> have the fiduciary obligation (to the author, not to the public) not
> to destroy or modify the original work (the COPY) under 17 USC sec.
> 106A (Visual Artists Rights Act, or VARA).

I agree with your analysis, if your assumptions as to terminology are consistent with what Mr. Phillips means to say. However, if Mr. Phillips is arguing that the "copy" is not personal property or is alternatively public property, my scenarios are formulated (however poorly) to explore (a) how he arrived at such a conclusion and (b) the repercussions of carrying out such a conclusion to its logical extremes.

> For the reasons set forth above, I disagree with your terminology...

I was employing Mr. Phillips' terminology so as to be consistent with his post. I agree that the terminology you proposed in your post is clearer and easier to work with.

Benedict A. Monachino
Peabody & Arnold LLP
Boston, MA
<bam[_at_]p-a.com> Received on Fri Oct 30 1998 - 18:50:21 GMT