Literary Property and Copyright

52 Pages Posted: 17 Jan 2012 Last revised: 15 Dec 2015

See all articles by Alina Ng

Alina Ng

Mississippi College School of Law

Date Written: January 16, 2012

Abstract

Even when the first subject matter of copyright control was literary works, the specific rights of authors who produce these works had never been clearly articulated. Copyright laws have protected a statutory right to distribute the work to the public that may be broadly owned by both author and publisher while the common-law right of property over the work, which would have protected an author’s creative interest in the work, have been dismissed by the courts as a legitimate source of law. This paper examines literary property as a form of authorial rights, which authors may potentially have over works of authorship and which is both separate and distinct from statutory copyright. By looking at publication contracts between manuscript publishers and authors such as John Milton, Ralph Waldo Emerson, Harriet Beecher Stowe, Henry Thoreau, and Oliver Wendell Holmes, this paper suggests that there are two sources of rights over literary and artistic works - one at common-law and another at statute – as evidenced by the fact that authors retained personal property rights over their work after exclusive rights to print were assigned to the publisher. Should the notion of literary property be accepted as another source of right for the author, there will be immense implications for how scholars, jurists, and policy-makers understand and shape copyright laws. If literary property is acknowledged as separate from statutory copyright, then ownership of the work and ownership of the specific rights under §106 of the Copyright Act would entail different entitlements. The author’s role in the copyright system will be more clearly defined as ownership of literary property delineates rights owned and obligations owed by authors who produce literary works for the rest of society. Finally, this paper argues that social expectation to access creative works may be checked against the authors’ right to protect their creative personality and integrity as well as the publishers’ right to receive fair payment for the use of the work if a clear conceptual distinction between literary property and copyright is drawn.

Suggested Citation

Ng, Alina, Literary Property and Copyright (January 16, 2012). Northwestern Journal of Technology and Intellectual Property, Vol. 10, Issue 7, May 2012 ; Mississippi College School of Law Research Paper. Available at SSRN: https://ssrn.com/abstract=1986445 or http://dx.doi.org/10.2139/ssrn.1986445

Alina Ng (Contact Author)

Mississippi College School of Law ( email )

151, East Griffith Street,
Jackson, MS 39201
United States
(601) 925 7176 (Phone)
(601) 925 7113 (Fax)

HOME PAGE: http://www.law.mc.edu/faculty/profile_ng.html

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