Re: Abandoning property (Was: Copyright Extension Bill Passes Congress)

Moritz Roettinger <moritz.roettinger[_at_]dg23.cec.be> wrote:
>
> The fruit of a human brain ... has no obligation to create a work
> ...the electricity supplier ... has a public obligation as countervalue
> for his monopoly.

Whether anyone is obliged to "create" a work is irrelevant. The question of obligations under copyright law involves only works that have already been created.

Under U.S. law copyright holders have always been considered to have public obligations. The 1976 law obscures this principle by applying copyright from the moment of fixation, to unpublished and published works alike. This provision might make it seem as if the copyright monopolist has no obligations to the public. But as I have said elsewhere, this rule is mainly for the law's administrative convenience. The formal copyright in a work which never becomes part of the public record in any way is all potential, never actual. Furthermore, even the copyright-from-fixation provision incorporates the notion that copyright is an exchange, since the copyright always (in theory) expires. If an author fixes a work, and the author and heirs fail to destroy all trace of it, then under the 1976 law the unpublished work becomes as much a part of the public domain as a published work would.

Once the author begins the public exploitation of the work -- once he hangs out a shingle, so to speak -- the obligations to the public become greater. Besides the general obligations binding on all who conduct business in the public arena, there are obligations specific to the holder of the copyright monopoly. Many of these obligations are imposed through the doctrine of fair use, or through compulsory licences.

So it is very much within the tradition of the English-speaking world to question whether the quid-pro-quo of copyright may be too much quid and not enough quod, and to propose that the balance should be adjusted. Your position, that copyright holders should have no special obligations to the public as copyright holders, is an extreme position in the American context.

Tim Phillips
<hrothgar[_at_]telepath.com> Received on Thu Nov 19 1998 - 15:14:22 GMT