IP: : Re: Life, Liberty

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

> From: "Harry Hillman Chartrand" <h-chartrand () home com>
> To: <farber () cis upenn edu>
>
> I'm sorry for not getting back into the 'ring' sooner.  Your points are well
> taken with respect to the 'words' of the Founding Fathers of the US
> Constitution.  Unfortunately the difference between the letter and the
> spirit of the law is the problem.
>
> The notorious 'Manufacturer's Clause' is an example. From 1909 until the
> mid-1980s no book by an American author could be sold in the United States
> unless it was printed in the United States. This is how Henry Miller's work
> was kept out of the US - copyright as censorship. Before 1909, no book by an
> English speaking author could be sold in the US unless printed there and no
> royalties were paid to non-American authors - Dickens got nothing.
>
> The accession of the US to the Berne Convention is, from a cynic's
> perspective, another example.  Whether it is the Visual Artist's Protection
> Act which grants moral rights to artists of 'recognized stature' (an issue
> to be determined by the courts, I assume) or the questionable concession
> made to grant architect's protection, accession has been half-hearted at
> best.  As far as I am concerned it was motivated by the extension of the
> term of copyright desired by US copyright proprietors like Disney (Mickey
> Mouse now has 25 more years of protection).  It had little if anything to do
> with recognition of the rights of creators.  The tension within American
> copyright law was perhaps best expressed by Chafee in his "Reflections on
> the Law of Copyright I & II" in the Columbia Law review, Vol. 45, Nos 4 & 5
> 1945.   On virtually the same page Chafee states:
>
> " ... intellectual property is, after all, the only absolute possession in
> the world... The man who brings out of nothingness some child of his thought
> has rights which cannot belong to any other sort of property"
>
> then:
>
> " We should start by reminding ourselves that copyright is a monopoly.  Like
> other monopolies, it is open to objections; it burdens both competitors and
> the public.  Unlike most other monopolies, the law permits and even
> encourages it because of its peculiar great advantages.  Still, remembering
> that it is a monopoly, we must be sure that the burdens do not outweigh the
> benefits.  So it is desirable for us to examine who is benefited and how
> much and at whose expense...."
>
> Reconciliation of these two positions can only be made by distinguishing
> between the creator and what the Statute of Queen Anne called copyright
> "proprietors".  By contract, all rights of the creator under US copyright
> can be transferred to proprietors who can, and increasingly do, exercise
> monopoly power.  It is not the monopoly power of the creator that is the
> problem.
>
> Thus in spite of the words of the Founding Fathers, the spirit of American
> copyright law remains rooted in the power of copyright proprietors, not
> creators.  To realize the words, the spirit of the law must change.  The
> Revolution must be completed as Frank Lloyd Wright wished.
>
> Yours truly,
>
>
> Harry Hillman Chartrand
> h-chartrand () home com