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

Terry Carroll <carroll[_at_]tjc.com> writes:
>
> As I see it, there are three diferent entities that need to be
> considered:
>
> 1) the work, a metaphysical thing that is not property, or, to the
> extent it can be characterized as property, is public property;
>
> 2) the copyright in the work, a legislatively created bundle of
> specific rights concerning reproduction, etc., of the work, and that
> is the property of the author and/or his assigns;
>
> 3) the copy, the only physical thing in the analysis, which is the
> material object from which the work is perceived, and which is the
> property of the individual who acquires title to the physical object
> lawfully produced under the ordinary rules for transfer of a chattel.
>
> Any analysis that confuses the copy with the copyright; the copyright
> with the work; or the copy with the work, is doomed to add more
> confusion than clarity.

I cannot agree that a work itself is necessarily "public property." Several things need to happen before that is true.

There is a time from the creation of the work (not necessarily its fixation, mind you) when a work is possessed solely by the author, like the capture of property from a state of nature by means of possession. Unlike, say, a fox, of course, the "showing" of that property to another releases it to the possession of another in a manner as fully and completely as the original owner had it. Of course, if the work is forgotten by all such possessors, it returns to the ether in ferae naturae.

Moreover, let us not forget that many works CAN be protected in its hidden state were copyright law abrogated tomorrow, particularly if the work is not widely shared and kept hidden by reasonable means -- presuming it contains content that otherwise satisfies the definition of a trade secret. Thus, the work in its solely or limited forms can be possessed and even protected by other property rights if Copyright were taken away tomorrow.

Of course, Terry can now carve out the "trade secrets" from a work and the work itself, but this brings me to another point. I am also uncertain that the severing of "the work" (as opposed to a copy of the work) from "the copyright in the work" is a meaningful distinction, any more than it makes sense to distnguish "the land as a property" and "the title to an estate in the land." Without the estate in the land, is the land also "public property?"

I agree that there are meaningful practical and legal differences between a work and a copy embodying the work. But is there a difference that matters in "the work" as a property per se, and "the intellectual property rights in and to the work" as a property?

And how is it useful or meaningful to assert that what is left of the work, when you distinguish away the copyright in that work, is a "public property." Isn't that true of EVERY form of property once you sever away the body of property law protecting it?

I am not agreeing there are distinctions to be made between property rights in a thing and the thing itself, but that is not what is done here. That is a sensible and useful distinction. Here, the distinction is being made between property rights in the thing, and the "thing itself as a property," which doesn't to me seem to be a well-defined notion at all.

Andrew C. Greenberg
<werdna[_at_]gate.net> Received on Wed Nov 04 1998 - 13:22:25 GMT