Legal History on "Natural" vs. Statutory Exclusive Rights

[Seth Johnson <seth.johnson@realmeasures.dyndns.org>]

In the struggle of authors and other creators versus publishers and other
old world "content distribution" industries, the creators' side takes
recourse on many occasions to the notion of "moral rights" as found in the
Civil Code tradition associated with France.  The content industries are
perfectly glad to hear this argument being aired by creators, because the
notion of "moral rights" plays a major part in how they seek to justify
restrictions on information technology.  They use the notion of a moral
"right of integrity" to rationalize digital restrictions management
schemes.  This is precisely what the recently passed WIPO Performances and
Phonograms Treaty does -- it is a DMCA-plus treaty, adding DRM policy to
anticircumvention.

The detailed legal history in the text at the following link is by a very
honest representative of the Civil Code tradition.  He is partial to the
idea that:

. . . 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 therein which cannot belong to any other sort of
property . . . (Chaffe 1945).

However, in this text he explains very lucidly how this is an utter myth
in the legal tradition.  Below I have pasted the segment from his section
on the American exclusive rights legal history, which explains how
American jurisprudence disavows the idea of natural rights of authors, and
why the American legal tradition is inconsistent with the notion of moral
rights.

The whole text is very much worth reading, for its historical analysis and
the way it explains the breakdown between trade regulation and natural
rights concepts of exclusive rights.  What's really interesting about it
is how close it comes to confronting the interest of the free citizen
while it lays out this analysis.  Chartrand's purpose is to appeal for the
Civil Code tradition to gain sway (in his conclusion, he calls the United
State's signing of the Berne Convention, with its moral rights provisions,
a "trojan horse for creators").  He presents this as a means of guarding
the public interest as opposed to the interests of the media
conglomerates.

However, digital information technology presents entirely different
conditions, and creates products of an entirely different sort from those
to which "moral rights" were originally applied, and a right to the
"integrity" of a work for creators doesn't settle well in the digital
context, if it is used to violate the fact/expression dichotomy through
measures like anticircumvention and DRM laws.  The American/English
tradition is suited to recognizing the intrinsic freedom of information
per se, and provides for flexible use of information regardless of where
it comes from.  This text actually makes clear where we stand and brings
us close to confronting the fact that in the digital age, citizens in a
free society have more fundamental rights than those of either
distributors or creators.

Seth Johnson

See Chartrand's full text piece at this link:   
<http://www.culturaleconomics.atfreeweb.com/cpu.htm>

_______
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