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Copyright and the Language of Property

Written by: Naheed Patel
Copyright Law Law
Legal Service
  • 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

    A huge media campaign has been launched which equates the unauthorized copying of music, movies and software to shop-lifting or stealing a car. A permission culture has been created through the inventive interpretation of laws. Ad-campaigns such as this try to socially demonise any activities, such as copying or the transformative use of art, since they occur outside the sphere of the permission culture. You cannot imbue intellectual property with the inalienable rights of physical property as it requires an intrinsic alteration in the intangible nature of the intellectual property and is irreconcilable with the utilitarian foundations of copyright. Transformative uses of copyright like mashing, sampling and appropriation art are incompatible with such a propertarian approach, which compels users to pay arbitrary licencing fees which may be beyond their budgets. Internet exception lists claim that copyright is policy, not property; it is different from tangible property and does not deserve the same moral or legal status typically afforded to our more traditional property entitlements. When property talk enters copyright discourse, it risks making transformative works an elitist form of creativity, with only people who can afford to pay the licencing fees having the privilege to use the works.

    The more parallels are drawn between the rights pertaining to physical property and those pertaining to intellectual property, the more opportunities there will be for oppressive monopolies to form on the backs of rights which were initially granted for the welfare of society.

    The idea behind Copyright was that the creator should be granted a bundle of rights so as to enjoy the fruits of his labour. It was to allow him to protect his unique expression of an idea and to benefit from it. However, the increasing trend to treat intellectual property as physical property necessarily straitjackets the creativity of users who wish to utilize an existing idea and interpret it for their own creations.

    'Property Talk' and the Revival of Blackstonian Copyright- Steve Collins
    The Author as Proprietor: Donaldson v. Becket and the Genealogy of Modern Authorship- Mark Rose
    Is Copyright Property? Adam Mossof
    Good Copy, Bad Copy- Covers, Sampling and Copyright - Steve Collins

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