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Is Copyright Property? A Comment on Richard Epstein's Liberty vs. Property

Is Copyright Property? A Comment on Richard Epstein's Liberty vs. Property

ADAM MOSSOFF - Michigan State University College of Law

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Abstract

    This short essay is derived from commentary on Richard Epstein's article, Liberty vs. Property, which was delivered at the 2003 conference on Promoting Markets in Creativity: Copyright in the Internet Age, co-sponsored by The Progress & Freedom Foundation and the George Mason University's Tech Center. The essay suggests that the opponents of Epstein's position that copyright entitlements are derived from similar policy concerns as tangible property rights would reject his thesis at the conceptual level, maintaining that copyright is not property, especially in the context of digital media. By assuming their rallying cry that "copyright is policy, not property," this essay reveals that opponents of digital copyright are caught in a dilemma of their own making. In one sense, their claim that "copyright is policy, not property," is an uninformative truism about all legal entitlements, and in another sense, represents a fundamental misconception of the history and concept of copyright. The concept and historical development of copyright are more substantial than its representation today as merely a monopoly privilege issued to authors according to the government's utility calculus. The essay concludes with the observation that those who wish to see copyright eliminated or largely restricted in digital media are in fact driven by an impoverished concept of property that has dominated twentieth-century discourse on property generally. As a doctrine in transition - we are still in the midst of the digital revolution - copyright may be criticized for various fits and starts in its application to new areas, but the transition itself does not change copyright's status as a property entitlement.

Facts on copyright

  • A common and simple practice to obtain evidence in favour of authorship is to place the copyright material in a envelope or package together with a document signed by several people stating that they have examined the work prior to it being sealed and that in their opinion it is original. Once this is done the package is mailed to the owner by recorded delivery, which helps to establish when the work was created, who the originator of the work is and that there are signatory validators prepared to state that it is original.
  • Many countries recognize certain moral rights of the author of a copyrighted work, following adoption of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (which in turn requires, inter alia, the implementation of the relevant provisions in the Berne Convention). Two key moral rights are the right not to have the work altered or destroyed without consent, and the right to be attributed as the author of the work. The Monty Python comedy troupe famously managed to rely on moral rights in 1975 in legal proceedings against American TV network ABC for airing re-edited versions of Monty Python's Flying Circus.
  • Copyright is a type of intellectual property. Designs or industrial designs may be a separate or overlapping form of intellectual property in some jurisdictions. Copyright law only covers the particular form or manner in which ideas or information have been manifested, the "form of material expression". It is not designed or intended to cover the actual idea, concepts, facts, styles, or techniques which may be embodied in or represented by the copyright work.

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