IP: Life, Liberty & Copyright

[Dave Farber <farber () cis upenn edu>]

From: "Harry Hillman Chartrand" <h-chartrand () home com>

Subject: Life, Liberty & Copyright


First, I wish to commend Atlantic Monthly for this outstanding series.  The
main article by Charles C. Mann: "Who Will Own Your Next Good
> Idea?" <http://www.theatlantic.com/issues/98sep/copy.htm> and the clashing
viewpoints of the Roundtable participants does much to illuminate the dark
recesses of a critically important issue for the future of our 'post-modern
society'.

Second, one dark recess was not, in my opinion, sufficiently illuminated,
i.e. the role of the publisher or 'copyright proprietor' in Anglo-American
copyright.  I wish to throw a little light on this subject.

Mark Stefik in his closing comments says it is appropriate to look at
history.  Assessing the experience of the French Revolution he concludes:

"In 1793 legislation was initiated to restore order to publishing. The
legislation recognized the rights of authors and grounded the publishing
industry in the principles of market commerce: the author as creator, the
book as property, and the reader as elective consumer. These principles are
now the basic elements of modern copyright law. "

WRONG!  Unfortunately Stefik misinterprets a history which is not his own.
The result of the Revolution was the Civil Code legal tradition of 'droit
d'auteur', i.e. author's rights.  In this tradition there are rights which
are inherent in and inalienable from the individual 'flesh and blood' human
creator.  It is upon these rights that rests an ongoing controversy between
France and the United States over copyright.  And it is towards these rights
that John Perry Barlow points but fails to clearly articulate.

To put the issue in context consider the history of Anglo-American
copyright.  The first copyright act was the Statute of Queen Anne (1710).
It was in this Act that the rights of the creator were, for the first time,
recognized in law.  Until that time all rights were vested in the
printer/publisher/bookstore.  However, in the same paragraph the Statute of
Queen Anne refers to the rights and limitations of the author relative to
the "copyright proprietor".    Thus from the beginning of Anglo-American
copyright the rights of the author/creator have been compromised in the
interest of the "copyright proprietor".  In fact, copyright began as and
remains, in the Anglo-American tradition, a Crown or government grant of
industrial privilege.  It is to this 'privilege' that hackers and copyright
infringers take offense and feel little, if any moral compunction, in
breaking.

Furthermore, a legal 'fiction' exists in Anglo-American Common Law which
does not exist in the European Civil Code, i.e. a corporation has the same
legal rights and standing as an individual 'flesh and blood' human being or
'natural person'.  Thus the clash between France and the U.S.A. over
copyright reflects an attempt by the U.S. to have the Europeans extend to
American corporations the same rights which the human creator enjoys under
'droit d'auteur'.  The French and the European Union refuse.  They say there
are some rights which are inherent in and inalienable from the human or
'natural' person.  This is most clearly expressed in the difference in
ownership of copyright in a motion picture.  Under the Civil Code the
director or 'auteur' owns the copyright.  Under Anglo-American copyright
whoever arranges for the production, i.e. the producer or studio, owns the
copyright.

Third and finally, Frank Lloyd Wright, among others, argued that the
American Revolution, at least with respect to intellectual property, is not
complete.  The French Revolution took the 'Rights of Man' and extended them
to intellectual property drawing a clear distinction between the rights and
privileges of the individual human being and corporate entities.  Perhaps it
is time to complete the American Revolution.


Harry Hillman Chartrand
Cultural Economist
706 Lansdowne Ave.
Saskatoon, Saskatchewan, Canada, S7N 1E5
Telephone: (306) 244-6945
e-mail: h-chartrand () home com

FYI.  See my article "Intellectual Property in the Global Village",
Government Information in Canada, University of Saskatchewan
http://www.usask.ca/library/gic/v1n4/chartrand/chartrand.html,  Spring 1995.