Sunday, March 11, 2007

Copyright: the Metaphysics of Law

Today, American copyright is an all-or-nothing, all-rights-reserved federal protection. The moment an “original work of authorship” is “fixed in any tangible medium of expression,”[1] its author receives an automatic claim to exclusive rights in that work. The duration of a single, “flesh-and-blood” author’s copyright is his entire life plus seventy years after his death. After that, the work passes into the public domain. Is this term too extreme?

Since its initial inception, the term of copyright’s protection has increased dramatically. In 1790, following the drafting of the Progress Clause of the United States Constitution, authors enjoyed fourteen years of federal protection in their published works. After that, they could renew their copyrights for a maximum fourteen more years. In those days, an author had to register his copyright by first submitting a printed title page of the work with a local court, then running a notice of publication in a newspaper within two months of publication, and finally placing a copy of the work with the Secretary of State within six months of publication.[2] Today, copyright is awarded without hassle or formality the moment a work achieves “fixity.” It seems that the arena of copyright, the law may indeed approach
“what may be called the metaphysics of law,” a regulatory realm “where distinctions are, or at least may be, very subtle and refined, and sometimes, almost evanescent.”[3]

[1] United States Code Title 17 Chapter 1 Paragraph 102

[2] alice schreyer “copyright and books in nineteenth-century america” Getting the books out. p 123

[3] Folsom v Marsh, 9 Federal Case 342, 344 (C.C.D. Mass. 1841).

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