Sociology Index

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Common Law Copyright Law Doctrine

Common law copyright doctrine is the legal doctrine which grants copyright protection based on common law of various jurisdictions, rather than through statutory law. Common law copyright doctrine is based on the contention that copyright is a natural right and the same protections would be applicable to anyone in regard to property. The proponents of Common law copyright doctrine contended that creators had a perpetual right to control the publication of their work.

Common law copyright is the legal doctrine which contends that copyright is a natural right and creators are therefore entitled to the same protections anyone would be in regard to tangible and real property. Common law copyright doctrine contends that creators had a perpetual right to control the publication of their work. Common law copyright doctrine contends that copyright is a natural right and creators are therefore entitled to the same protections anyone would be in regard to tangible and real property.

British Parliament has granted perpetual royalties in regard to Peter Pan though it is under no obligation to do so and can set a limited term. Common law copyright doctrine was repudiated by the courts in the United Kingdom (Donaldson v. Beckett, 1784) and the United States (Wheaton v. Peters, 1834). In both countries, the courts found that copyright is a limited right created by the legislature under statutes and subject to the conditions and terms the legislature sees fit to impose.

The United States Congress is prevented by the Copyright Clause from granting a perpetual copyright, and the Supreme Court has ruled that limits on copyrights already granted can be extended. In the New York State 2005 case, Capitol Records v. Naxos of America, the court held that pre-1972 sound recordings, which do not receive federal copyrights, may nevertheless receive state common law copyrights, a ruling that was clarified and limited with 2016's Flo & Eddie v. Sirius XM Radio.

In a case known as Midwinter v. Hamilton (1743–1748), the London booksellers turned to common law and starting a 30-year period known as the battle of the booksellers. The battle of the booksellers saw London booksellers locking horns with the newly emerging Scottish book trade over the right to reprint works falling outside the protection of the Statute of Anne. The Scottish booksellers argued that no common law copyright existed in an author's work. The London booksellers argued that the Statute of Anne only supplemented and supported a pre-existing common law copyright.

Common law copyright is also the term used in the United States to refer to most state law copyright claims. In 1978, Section 301 took effect, preempting all state common law copyright claims that fall under subject matter in Section 102, which covers subject matter of copyright in general, or Section 103, which covers subject matter of copyright in Compilations and derivative works except for sound recordings fixed before February 15, 1972. This leaves a sizable amount of work that still falls under a mixture of state statutes and common law copyright.