Court and Government decisions
Due to a very imperfect wording of the 1998 Brazilian Copyright Law, court decisions and other official legal documents have been argued as being held in property by their authors. In one egregious case, the Law School of which I am the dean has been successfully sued by the subscriber of a officially published legal opinion by a Brazilian SEC house attorney, utilized for straight academic purposes during a short term course. The opinion has a mandatory, that's to say, normative, character and was collected from SEC's website.
Should this trend go on, legislators would be able to dispense with their salaries, and live on the proceeds of their good works. And so would judges.
Tuesday, February 18, 2003
Public domain - property rights assured to the public?
A roman system jurist would probably distinguish between property rights enjoyed by the public at large and liberties. Liberties are however possession-protected, as anyone can (in some jurisdictions) claim possession (even not exclusive...) of a throughway if a squatter prevents the liberty to use it.
Therefore, possession, as the free use of a public domain utility may be recognized as an economic right even though property does not actually falls into the hands of the public at large.
This analysis of public domain (on American legal concepts) has been very convincingly advanced by the market failure theorists.
A roman system jurist would probably distinguish between property rights enjoyed by the public at large and liberties. Liberties are however possession-protected, as anyone can (in some jurisdictions) claim possession (even not exclusive...) of a throughway if a squatter prevents the liberty to use it.
Therefore, possession, as the free use of a public domain utility may be recognized as an economic right even though property does not actually falls into the hands of the public at large.
This analysis of public domain (on American legal concepts) has been very convincingly advanced by the market failure theorists.
Public domain as a right of humanity
The problem, as I see, is not the rights of man. Is one of vested rights. Given the significant difference between legal systems, on most roman tradition systems, a right of free use subject to a certain delay of time is a vested right albeit not immediately enforceable (as to the free use). All the means to preserve the flow and end of time as assured at moment zero are however allowed.
Once a exclusive right is acquired, subject to a definite time, all the persons excluded from the enjoyment by the acquisition have a rightful expectation of free use when the time expires. If such expectation is assimilable to an easement or a vested right is certainly a question of jurisdiction. But only so.
I notice that in Sears, Roebuck & Co. V. Stiffel Co., 376 U.S. 225 (1964), the court said:
"During that period of time no one may make, use, or sell the patented product without the patentee's authority. But in rewarding useful invention, the "rights and welfare of the community must be fairly dealt with and effectually guarded. To that end the prerequisites to obtaining a patent are strictly observed, and when the patent has issued the limitations on its exercise are equally strictly enforced. (...)
Ø when the patent expires the monopoly created by it expires, too, and the right to make the article - including the right to make it in precisely the shape it carried when patented - passes to the public.
The problem, as I see, is not the rights of man. Is one of vested rights. Given the significant difference between legal systems, on most roman tradition systems, a right of free use subject to a certain delay of time is a vested right albeit not immediately enforceable (as to the free use). All the means to preserve the flow and end of time as assured at moment zero are however allowed.
Once a exclusive right is acquired, subject to a definite time, all the persons excluded from the enjoyment by the acquisition have a rightful expectation of free use when the time expires. If such expectation is assimilable to an easement or a vested right is certainly a question of jurisdiction. But only so.
I notice that in Sears, Roebuck & Co. V. Stiffel Co., 376 U.S. 225 (1964), the court said:
"During that period of time no one may make, use, or sell the patented product without the patentee's authority. But in rewarding useful invention, the "rights and welfare of the community must be fairly dealt with and effectually guarded. To that end the prerequisites to obtaining a patent are strictly observed, and when the patent has issued the limitations on its exercise are equally strictly enforced. (...)
Ø when the patent expires the monopoly created by it expires, too, and the right to make the article - including the right to make it in precisely the shape it carried when patented - passes to the public.
Can you establish a registration-for-prorogation requirement in copyright?
I would not think Berne plus TRIPs would be violated. Once the minimum term provided by such Agreements are complied with, any further extensions would arguably be free from their scope. See Article 5, paragraph (1) of Berne (...as well as the rights specially granted by this Convention). Convention plus TRIPs specially grants to all a term, with all the trimmings, including the no-formality rule. Beyond that, national legislation is on a freehold.
Therefore, the registration-for-extension (in excess of TRIPs minimum term) requirement would not be violative. On the other hand, the first registration is already infringing....except if we accept the convenient but dubious interpretation that U.S. Laws can impose locally the registration that would be void under Berne.
I would not think Berne plus TRIPs would be violated. Once the minimum term provided by such Agreements are complied with, any further extensions would arguably be free from their scope. See Article 5, paragraph (1) of Berne (...as well as the rights specially granted by this Convention). Convention plus TRIPs specially grants to all a term, with all the trimmings, including the no-formality rule. Beyond that, national legislation is on a freehold.
Therefore, the registration-for-extension (in excess of TRIPs minimum term) requirement would not be violative. On the other hand, the first registration is already infringing....except if we accept the convenient but dubious interpretation that U.S. Laws can impose locally the registration that would be void under Berne.
Why Berne Convention has chosen a 50 year term for copyright
Reading the very sensible Guide to Berne Convention by Masouyé, WIPO's Official book on the convention:
7.4. It is not merely by chance that fìfty years was chosen. Most countries have felt it fair and right that the average lifetime of an author and his direct descendants should be covered, i.e., three generations. Clearly the justice of the period varies; it depends always on the length of the author's life and the difference between cases in which he is cut off in his youth or becomes a centenarian cannot be avoided. But it is generally felt normal to add to the author's lifetime a period long enough to allow his heirs to profit from his work while they remember him. Experience has shown that, when an author is dead, his works sometimes fall into a sort of limbo from which they may or may not emerge some time later. In any case, apart, perhaps, from books and certain dramatico-musical works. modern means of exploiting works often make the length of the term of copyright of little financial importance to the users: the latter negotiate blanket licences with the authors' representatives to use large repertoires and normally the lapse into the public domain of any given work makes little difference to the amount they pay. For all these reasons, this minimum period laid down in the Convention seems to provide a fair balance between the interests of authors and the need for society to have free access to the cultural heritage which lasts far longer than those who contributed to it.
Reading the very sensible Guide to Berne Convention by Masouyé, WIPO's Official book on the convention:
7.4. It is not merely by chance that fìfty years was chosen. Most countries have felt it fair and right that the average lifetime of an author and his direct descendants should be covered, i.e., three generations. Clearly the justice of the period varies; it depends always on the length of the author's life and the difference between cases in which he is cut off in his youth or becomes a centenarian cannot be avoided. But it is generally felt normal to add to the author's lifetime a period long enough to allow his heirs to profit from his work while they remember him. Experience has shown that, when an author is dead, his works sometimes fall into a sort of limbo from which they may or may not emerge some time later. In any case, apart, perhaps, from books and certain dramatico-musical works. modern means of exploiting works often make the length of the term of copyright of little financial importance to the users: the latter negotiate blanket licences with the authors' representatives to use large repertoires and normally the lapse into the public domain of any given work makes little difference to the amount they pay. For all these reasons, this minimum period laid down in the Convention seems to provide a fair balance between the interests of authors and the need for society to have free access to the cultural heritage which lasts far longer than those who contributed to it.
On the tax incentive to promote donating works to public domain
The issue is lost when you suggest that a tax incentive should be given to induce authors to donate works to public domain. Economic analysis (it would seem to me) would think that proposal quite a paradox.
The Government incentive already exists. Copyright in itself is an artificial (although necessary) Government interventive action to induce authors to create. If public interest advises that works should remain in public domain, just cease or limit the incentive already granted. Can you imagine a Government subsidy to plant wheat, and a second one to pay for the fuel for burning the same wheat? Oh, that happened in Brazil with coffee, but then , as Charles de Gaule said, Brazil is not a serious country.
The issue is lost when you suggest that a tax incentive should be given to induce authors to donate works to public domain. Economic analysis (it would seem to me) would think that proposal quite a paradox.
The Government incentive already exists. Copyright in itself is an artificial (although necessary) Government interventive action to induce authors to create. If public interest advises that works should remain in public domain, just cease or limit the incentive already granted. Can you imagine a Government subsidy to plant wheat, and a second one to pay for the fuel for burning the same wheat? Oh, that happened in Brazil with coffee, but then , as Charles de Gaule said, Brazil is not a serious country.
Tangible property and intangibility - a metonymic property
"When property is SOLD, the owner does not still have it. When you SELL your creative works to the public via publication, copyright law allows you to continue to hold your property (for all practical purposes) for your entire lifetime plus 70 years."
There is a small precision to be made. "When property is SOLD, the owner does not still have it. " This is a quite precise statement. "When you SELL your creative works to the public via publication..." Sell" in this context is a metonym. Is a loose term used outside the field of law to denote other things not germane to the legal concept of selling. Like "selling the presidential candidate's image", what is something that is sold but not necessarily bought.
Selling is something that requires res, pretium et consensum, agreement and price, but most of all requires the existence of a thing - a certain and determinable thing, unique and equal to itself. Creative works (as Blackstone puts it) exists in contemplation, and lack the uniqueness plus self-equality properties.
"When property is SOLD, the owner does not still have it. When you SELL your creative works to the public via publication, copyright law allows you to continue to hold your property (for all practical purposes) for your entire lifetime plus 70 years."
There is a small precision to be made. "When property is SOLD, the owner does not still have it. " This is a quite precise statement. "When you SELL your creative works to the public via publication..." Sell" in this context is a metonym. Is a loose term used outside the field of law to denote other things not germane to the legal concept of selling. Like "selling the presidential candidate's image", what is something that is sold but not necessarily bought.
Selling is something that requires res, pretium et consensum, agreement and price, but most of all requires the existence of a thing - a certain and determinable thing, unique and equal to itself. Creative works (as Blackstone puts it) exists in contemplation, and lack the uniqueness plus self-equality properties.
Idea and expression in science
"at an epistemological level, scientists are concerned not with
facts, but with the relationship between facts. That makes it very easy
to blur idea/expression"
Granted that distinguishing idea and expression is not easy at all times, relations between facts is not more expression than the facts themselves. Epistemologically, res ipsa loquitur, or more precisely, things relate themselves; even though the relations conceived originally - fictionally, if you want, or hypothetically - by scientists may _have_ an expression deriving from the creator's ingenuity, they are not expressions by themselves. Especially if they are real relations and not just fancy hypothesis.
But the same goes as to non-scientific works. Music is by definition relational; either as relations in simultaneity (harmony or counterpoint) or in time (melody), the effects of that art are created by the effect of moving or boring relations of acoustic and chronological relations. Composing is weaving such relations from the facts of sound and time. However (and this is the point), neither the isolated relations (for instance, the Barrabas chord in Bach) nor the extended relations held a thematic material are protected on a exclusive basis. A theme, or musical idea, is (with all due care with excessive extension of this taking and reasonableness of such utilization) is liable to be picked and reutilized by other creators. Composing upon a theme from other authors is a time-honored usage of the music world. And this happens whether or not the theme originally created is in public domain.
"at an epistemological level, scientists are concerned not with
facts, but with the relationship between facts. That makes it very easy
to blur idea/expression"
Granted that distinguishing idea and expression is not easy at all times, relations between facts is not more expression than the facts themselves. Epistemologically, res ipsa loquitur, or more precisely, things relate themselves; even though the relations conceived originally - fictionally, if you want, or hypothetically - by scientists may _have_ an expression deriving from the creator's ingenuity, they are not expressions by themselves. Especially if they are real relations and not just fancy hypothesis.
But the same goes as to non-scientific works. Music is by definition relational; either as relations in simultaneity (harmony or counterpoint) or in time (melody), the effects of that art are created by the effect of moving or boring relations of acoustic and chronological relations. Composing is weaving such relations from the facts of sound and time. However (and this is the point), neither the isolated relations (for instance, the Barrabas chord in Bach) nor the extended relations held a thematic material are protected on a exclusive basis. A theme, or musical idea, is (with all due care with excessive extension of this taking and reasonableness of such utilization) is liable to be picked and reutilized by other creators. Composing upon a theme from other authors is a time-honored usage of the music world. And this happens whether or not the theme originally created is in public domain.
Quoting Brecht
One enterprising research, but certainly interesting, would be the quantification of identifiable prior-created, unpaid matter in major commercial works. Any doctoral thesis on the matter would be a certain hit. Fantasia and Paul Dukas plus Moussorgsky; all the Grimm's and Perrault's stories for other Disney Creations. Applying the same principles (or ends) supporting Eldred, wouldn't that be a big time theft?
Parodying Brecht, what are small time infringers, compared to a large commercial copyright holder?
One enterprising research, but certainly interesting, would be the quantification of identifiable prior-created, unpaid matter in major commercial works. Any doctoral thesis on the matter would be a certain hit. Fantasia and Paul Dukas plus Moussorgsky; all the Grimm's and Perrault's stories for other Disney Creations. Applying the same principles (or ends) supporting Eldred, wouldn't that be a big time theft?
Parodying Brecht, what are small time infringers, compared to a large commercial copyright holder?
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