Copyright proper. Column

(IPRinfo 2/2009)

In the English speaking world, copyright was correctly understood as a remedy for book-sellers’ problems. It was a means of regulating trade – very high in agenda during the 18th century. The English language did not even have a name for people creating original works. ”Works” sometimes meant waterworks or electric works or clockworks.

In France, the political situation was different. The language was used by printers in the neighboring states – what began to be known as Belgium, and Switzerland. During the ancient régime, the Low Countries were an abode of writers, and Switzerland had – mostly for religious reasons – the tradition of printing dissidents’ opinions.

So in the French law, ”l’auteur” had for a long time the connotation of ”the suspect”. Instead of ”copyright”, they developed ”author’s right” (droit d’auteur). Rousseau (1712 – 1778) and Voltaire (1694 – 1778), who published in Switzerland, thought the idea of ”owning” ideas and expressions ridiculous. Rousseau changed his mind after the royalties started rolling in – he was The First Romantic, ten years before Goethe (1749 – 1832).

The German and Scandinavian nations favored the romanticist notion of excavating and bringing to light something unknown or long since forgotten (German ”urheben”). In German ”the origin” is ”Ursprung”.

The Latin ”persona” was widely used during the classical era, although it originally meant the mask used by actors.

Some of the central problems of modern copyright derive from the long-forgotten contest of mostly German scholars concerning the systematic placement of copyright. There were two main parties, that of Joseph Kohler and that of Otto von Gierke. The seminal studies were published 1880-1900. One party held for ”Persönlichkeitsrecht”, the other for ”Immaterialgüter” (personal right – intangible right). These two ideas have been misunderstood. The former is very close to ”moral rights” in modern law whereas the latter seems to connect the object of copyright, patents and trade-marks as ”non-tangible goods”, hinting that rules about sales of goods should be held in mind. One is the subject’s right, the other is the object’s right.

Today, we mostly think copyright as a means of getting some economic remuneration, coupled with some ephemeral glory due to creative minds, although scientists are not creative, by definition.

If we move our focus from traditional copyright to what is sometimes called information law, we cannot help noticing that there is a swarm of ”rights” around copyright, such as privacy, freedom of speech, transparency, freedom of harassing and discrimination and so many others.

Lawyers seldom think of buying and selling in this connection. The German lawyers, naturally, tried to build a system out of ”rights”. Otto von Gierke presented some of his ideas about copyright in German private law.

At present, the problem is this: in the age of Human Rights copyright and patents are among many fundamental rights secured for people. On the other hand, rights derived from these monopolies are the fundament of the very large business of content (television, computer programs and games, everything printed, music…)

The question is, is this contest between pseudo-ownership and law of obligations + contracts basically flawed? Copyright is closer to providing services than manufacturing goods.

Our hypothesis is that the gap cannot be bridged and we should prepare ourselves to promulgating separate laws on creators’ copyright and trade-related (acquired) copyright.