Napster & The Recording Industry Association of America
Harry Hillman Chartrand
Times article of March 7, 2000) to Napster by Carey Sherman, general counsel
for the Recording Industry Association of America.: "There are people who
think nothing of downloading entire CD collections on Napster who wouldn't
dream of shoplifting from Tower Records...", highlights a very important
disconnect between intellectual property as (a) corporate property like
land, buildings and bank accounts; and, (b) intellectual property as "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" - Z. Chaffee, "Reflections on the Law
of Copyright" Columbia Law Review, Vol. 45, Nos. 4 & 5, 1945.
The artist, author, creator or inventor does not, on average, enjoy any such
'special' rights. Through blanket, exclusive and other exploitative
licenses, such rights were virtually snuffed out at the very birth of modern
copyright (the Statute of Queen Anne,1710) in which the copyright monopoly
was justified as a means of encouraging "learned men to compose and write
useful books" but subject to protecting the financial interests of
"proprietors" - publishers, bookstores, printers, etc.
Legally 'wrong' Napsters see proprietors, not artists, when they infringe
copyright. They see 'fat cats': the Time-Warner-AOL's, News Corp's and the
Bertlesmann's of the world. This is the moral level to which copyright has
been reduced in the minds of Napsters. The tinder fuelling this disconnect
is the legal fiction, under Anglo-American Common Law, that bodies corporate
are 'persons' under the law, just like the flesh-and-blood 'natural persons'
in whom the intimate and unique rights, of which Chafe wrote, are supposedly
embodied. And this fiction, according to Frank Lloyd Wright, with respect
to intellectual property rights, has meant that the American Revolution is
incomplete. The USA retains with respect to IPRs, as do all
English-speaking cultures subject to the Common Law, an ancient aristocratic
bias towards grants of Crown Privilege to bodies corporate made up of the
Monarch's friends and sycophants.
The French Revolution went further and actually embodies, in the Civil Code,
the sentiments expressed by Chaffee about intellectual property. Thus,
while the USA eagerly extended the term of its copyright after accession to
the 'Civil Code riddled' Berne Convention, it did not, and gives no
indication of intending to, adopt the Berne Convention's 'moral
rights' of creators. The American Copyright Act does not explicitly
recognize such rights except in cases of fact before the courts concerning
"artists of recognized reputation". In fact the difference in the naming of
'copyright' (the right to copy) under Common Law versus 'author's rights'
under the Civil Code says it all. In the English-speaking world it is not
the rights of creation that are protected, it is the right to copy!
If you don't respect your parents, don't be surprised when your children
disrespect you. Or, in a more Japanese sense: An obligation not felt, is
not an obligation. The education job of which Mr Sherman speaks works both
ways. If copyright proprietors expect legal rights to be respected then
they should, at a minimum, 'be seen' to respect the moral rights of the
creator - at a minimum. A nice first step would be for the Recording
Industry Association of America to lobby Congress to enshrine Berne
Convention moral rights in the American Copyright Act.
With best wishes, I remain
Yours truly,
Harry Hillman Chartrand
Cultural Economist & Publisher
Compiler Press
h-cha...@home.com
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