Over-zealous copyright laws have an
adverse effect on the freedoms of consumers and creators to make use of
copyrighted material. By ascribing the characteristics of tangible property to
intangible property, copyright laws are fomenting an
intellectual land grab, as values of intangibles increase and authors seek maximum copyright protection for their works. For example, if someone eats my apple, then I cannot eat it. But if someone takes my idea, I still have it. The consumption of intellectual property is non-rivalries. If I tell you my idea, or if you use my idea, that does not mean that I am deprived of it. It is not like the taking of a tangible object where the original owner is completely deprived of its use and utility once it is taken. As stated in Dowling v. United States.
The infringer of a copyright does not
assume physical control over the copyright nor wholly deprive its owner of its
use. Infringement implicates a more complex set of property interests than does
run-of-the-mill theft, conversion, or fraud.
Copyright was invented after the advent of the printing press and with wider public literacy. As a legal concept, its origins in Britain were from a reaction to printers' monopolies at the beginning of the eighteenth century. Charles II of England was concerned by the unfair copying of books and passed the
Licensing Act of 1662, which established a register of licensed books and required a copy to be deposited with the Stationers Company. The Statute of Anne was the first real copyright act, and gave the author rights for a fixed period, after which the copyright expired. Copyright had traditionally been a publisher’s not an author’s right. Under the Stationers’ Company regulations only members of the guild could hold copyright. Authors had no explicitly recognized place in the scheme. The authors did not own their works, but the stationers acknowledged an obligation to obtain the author’s permission before publishing and to pay him for his work.
. Sir William Blackstone, in his commentaries on the Laws of England, defined property in absolutist terms as that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the whole universe. On the topic of reprints he staunchly argued an author has clearly a right to dispose of that identical work as he pleases, and any attempt to take it from him, or vary the disposition he has made of it, is an invasion of his right of property Blackstone interpreted the
Lockean theory of property and applied it to the realm of intangibles. He argued for a copyright that extended beyond the author’s expression and encompassed the very style and sentiments held therein. According to Locke,
.every Man has a Property in his own Person . . . The Labour of his Body and the Work of his hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided and left it in, he hath mixed his Labour
with, and joined to it something that is his own, and thereby makes it his
Property.
The theory of Blackstonian copyright was diluted by the House of Lords in Donaldson v. Becket [1774] and sixty years later by the US Supreme Court in Wheaton v. Peters.
Donaldson v. Becket
overturned the previously held idea of the common-law right of literary property and the principle of perpetual copyright. However, Blackstone’s propertarian approach to copyright has never entirely vacated copyright discourse.The media plays a very big role in promoting the notion that intellectual property is a species of physical property in the hope to tighten its stranglehold on copyrighted materials. But recently courts and jurists have also started prescribing to the idea of commoditizing intellectual property, thereby negating the non-rivalrous nature of its consumption and blurring the idea-expression dichotomy. In 2003, the constitutionality of the Sonny Bono Copyright term Extension Act was upheld in Eldred v Ashcroft. This act provides for provided for the extension of existing copyright terms by an additional 20 years from the terms set by the US Copyright Act of 1976. Because of this act, works which were published in 1928 have still not entered the public domain. The lead petitioner, Eric Eldred, is a noncommercial Internet publisher of public domain texts and derivative works. The decisions was a huge blow to the proponents of a free internet culture, who wish to frame the debate of intellectual property in terms of terms of freedom, liberty, creativity, our common culture, and the public domain. It is surmised that Eldred was lost because proponents of digital copyright have successfully defined their legal entitlements as property, which makes those who believe in the public domain and in commons sound like communists. In
Grand Upright v. Warner Bros. Judge Kevin Duffy commenced his judgment with the admonishment Thou shalt not steal. Similarly, in Jarvis v. A&M Records
the court stated there can be no more brazen stealing of music than digital
sampling
The author can be reached at: naheedpatel@legalserviceindia.com
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