Lost in Translation: Distinguishing Between French and Anglo-American Natural Rights in Literary Property, and How Dastar Proves that the Difference Still Matters

摘要

In Wheaton's wake, U.S. courts have only entertained copyright claims arising from federal acts and the Constitution, and have ruled that any expansion of copyright protection necessarily must come from Congressional action rather than judicial activism. On numerous occasions, the Supreme Court has held that the Copyright Clause's foremost aim is not to reward authors but to employ the "limited grant [as] a means by which an important public purpose may be achieved." Though a number of commentators have argued that the Court has been overly deferential to Congress's arbitrary lengthening of the copyright term, the Court clearly respects Congress's mandate to balance the public and private interests as it sees fit. Congress has also repeatedly treated copyright as strictly a creature of positive law. Perhaps the quintessential expression of the pro-public domain, anti-natural rights sentiment came in the form of the 1909 Copyright Act, which, in extending the author's monopoly to two twenty-eight year terms, clarified that "the object of all legislation must be... to promote science and the useful arts[,]... not primarily for the benefit of the author...." Turning to natural rights, Congress was adamant that "[t]he enactment of copyright legislation by Congress under the term of the Constitution is not based upon any natural right that the author has in his writing." The Copyright Act of 1976 then eliminated the final vestige of common law copyright-the perpetual copyright for unpublished works-by pegging the running of the statute to the moment of a work's creation, rather than its publication.