“Right and Wrong: The copy-right infringement,” by John Bloom, Nov. 22, 2002, National Review Online, makes a decent argument that the Bono copyright law’s extension of copyright terms is unconstutional because this violates the Constitution’s provision that Congress can grant copyright for “limited times”. I’m still doubtul the Supremes will overturn the law, but if they buy reasoning like Bloom’s, maybe they will. Who knows.
It might benefit journalists who write on IP issues to ask an IP attorney to read over their final draft, however. Bloom writes that copyright means this: “Whoever creates something that has never been created before has the exclusive right to copy it. […] It’s not the person who registers it with the Library of Congress. It’s the person who does it first. Just the act of creation makes the right kick in.”
Bloom is quite right that there need be no registration to obtain a copyright; it is granted automatically to the author of an “original work,” the moment the work is “fixed” in a “tangible medium of expression. But he is wrong to imply that “doing it first” is really relevant for purposes of copyright. He seems to be confusing patent law with copyright law. A patent to an invention is awarded only if the inventor applies for it. It is not granted automatically. And, two independent inventors of the same invention cannot both receive a patent on it: the first inventor (with certain technical exceptions) is the one who wins, in case of a dispute.
But nothing in copyright law requires that one be the first author of an original work; the only requirement is that one be an actual author of an original work, and that one did not simply copy it from someone else. In theory, if two people were to independently create the same work, at different times, each has a copyright in it. Now this is extremely unlikely, so the “first” person to create it is usually the only copyright owner. But it is not his being first that matters, but simply that he is a creator of an original work that is fixed in a tangible medium of expression.
