[d@DCC] Idea exploration: hierarchy of creators' rights?

[Wallace J.McLean]

>> Legislating some manner of certainty as to the legal result stemming from
>> a certain fact situation is NOT the same as the government "taking away"
>> something from somebody.
>
>  How did "work for hire" create certainty?  Without this modification the
>certainty would be that the creator would own copyright unless copyright
>is signed away in an employment contract.  This is the same as many other 
>things which can be sold as part of a contract, and is a basic aspect of 
>material rights being able to be transferred.

"Work for hire" is American law, not Canadian. The CA in Canada has the
"Work made in the course of employment" provision, s. 13(3).

I would rather have it certain that way, than the other way around. Given
the scope of copyright, where almost everything is a copyright work, the
wheels of commerce would be greatly rusted if the author/employee was
automatically the first owner in every circumstance. It could cause great
mischief if, for example, XYZ Corp. would have to go back to a former
employee every time they wanted to reprint the training manual that Mary
Roe had authored for them, for their purposes, solely because she
happened to work in their direct employment, two years before she left the
company.


>  I do not see how this law created certainty, as it just changed the
>default *FROM* creators having first copyright to employers having first
>copyright.  How is that not taking first creator copyright rights away
>from creators?

In those circumstances, the "creator" shouldn't have the same first rights
as Susan Crean! The nature of the work, its purpose, the conditions under
which it was created, are completely different from the poor, downtrodden
playwrights and poets of the world.


>> If it did, whole swaths of provincial civil law is as immoral as the
>> sections of the Copyright Act you're indirectly referring to here.
>
>  Can you give me examples?  I'm interested in exploring this more.

Almost the whole of common-law contract, tort, and property law does this
sort of thing. If your actions meet conditions X,Y, and Z, ta-da, the
money you thought *you* owned, is actually held by you in trust for
someone else. Or it's owed to someone as part of a common-law contract. Or
someone now legally owns it thanks to "trover". 


>> The problem with the cane vs. nose metaphor is that people on both sides
>> of a controversy will claim to be cane AND nose.
>
>  I guess you are right here in that there is some subjectivity.

Not so much that it's subjective, but that there are two sides to every story.


>I may 
>have a very clear idea in my mind which is cane and which is nose, but it 
>may be that my idea is not shared by others.

Zackly.

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