Roman Law, Private Property and the Public Domain: Lessons for Copyright Policy

Abstract

An analogy can be drawn between the concept of copyright, as it exists under the Copyright Act 1968 (Cth) and the notion of a usufruct under Roman law. The author of a copyright work has the right to use and enjoy the work for the term of the statutory copyright. The work, however, is in the public domain and the public is the owner of the copyright subject to the usufruct. Under Roman law, a usufruct could be for a fixed term or for life. Even if it was for a fixed term, the usufruct terminated on the death of the holder of the usufruct.

There is an anomaly in the term of copyright when considered against the term of the monopoly granted under the Patents Act 1990 (Cth) in respect of an invention. The research and effort that it often required for an invention far exceeds the effort that is involved in the production of the vast majority of dramatic, literary, artistic and musical works that are the subject of copyright for a far greater term than is granted in respect of an invention. It may be that the time has come for a rethinking of the term of copyright. Rather than a fixed term after the death of the author or the composer or artist, irrespective of the nature of the work and the age of that author, composer or artist, it may be appropriate that there be variable terms.