[Hitch]

Originally Posted by arjaybe

Another failed attempt to conflate rights with property. The fact that the example used to illustrate it was the creation (painting, manuscript) and not the copyright shows its weakness. The right has some property-like attributes, but that is all. Trying to equate rights with property will lead to ridiculous results. My right to vote is property. My right to turn right on a red light is property, etc.

rjb

Well, not to hair-split, but, unfortunately, law does hair-split. The copyright protection is the license. The copyright does, in fact, protect a property. (This is one of the reasons I asked the question I did in my last post: at what point would someone be entitled to my unpublished manuscript? That has what is legally termed a "common law copyright." If copyrights expire, as they do, then when is John Doe entitled to my unpublished manuscript? Given the state of the law, is the answer, when the common-law copyright expires, or is the answer, "never?")

And why do I ask that, and bring it up? Because the legal definition of a "common law copyright" (a work that is not yet published nor has a registered copyright) is:

"...is that right which author has in his unpublished literary creations, a kind of property right whose extent is to give him control over first publication of his work or to prevent its publication." (Black's Fifth Edition, underscore emphasis added)

Patently, the manuscript in question is, of whatever "kind," a property right. And it's not merely due to the paper it's typed on, as this exists whether the manuscript is digital or not. Therefore, no matter how you slice it, there is a type of property right that attaches--however slim--to created works.

The first line of the definition of copyright is:

"The right of literary property as recognized and sanctioned by positive law."--ibid.

And I won't put everyone to sleep by adding the definitions of "literary property" and "literary works," at least under US Copyright law.

When courts, lawyers and Congressmen use the term "property," they don't use it loosely or casually. Copyright is about the licensing of the production of the work (print, ebooks, plays, whatever). The literary work itself, however, is property, so we should not conflate those two, either.

Otherwise, one would find themselves in the position of trying to argue that Harry Potter is only a license held by JK Rowling, and not her creation or her property. He is patently her creation, and she owns him, certainly for the term of her legally-entitled copyright, before he falls into the public domain.

And so thus, back to the thorny issue of the unpublished manuscript in my hypothetical desk: at what point, exactly, does anyone think that this falls into the public domain? To prove (or find fatal flaws in) arguments and theories, you need to extend them out to their possible limits. So, let's start with this one: what's the answer?

Hitch