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