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liability for impinging on the common law intangible property interest (common law copyright, as distinguished

was

from statutory copyright under the federal copyright statute) of third persons (Mr. Nixon aside) who may still hold that intangible interest! The specifically stated purpose of the immunizing statutory provision to assure that "the United States and its agents would not be liable for any infringement of literary property rights that might result from the use of letters and other material (exclusive of material copyrighted or patented) after they come into the custody of the Administrator.

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The cumulative impact of all the foregoing seems

to require a conclusion that, as to tangible items with respect to which Mr. Nixon did not originally own the common law intangible copyright interest, this Chattel Deed did grant the United States only a "future interest" in the "tangible" personal property.

This conclusion necessarily leads to a second question: Regarding "tangible" personal property, did the Chattel Deed have the same before-mentioned effect

also as to a second group of tangible items, specifically

as

to those tangible items with respect to which Mr. Nixca originally also owned the intangible common law property interest (common law copyright)?

For three reasons, the first two of which are

the more persuasive, it appears as to this second group of items that the United States again should be

deemed to have received, as to the "tangible personal property," only a "future interest" therein.

The first reason has to do with the operative language of the deed itself, -Observe that the operative language, in all particulars, is common to both groups of tangible items, i.e., to those as to which Mr. Nixon had no intangible interest, as well as to the tangible items as to which he originally did hold the intangible property interest.

Thus, if as

to tangible items in which Mr. Nixon did not originally own an intangible property interest, the deed is said to have conveyed for tax purposes only a future interest in the tangible item, it is a bit difficult as a matter of construction, to argue that

the deed's common operative language effects the tangible property interest in the second group of items in a different

manner.

A second consideration has to do with the deed's so-called "negative-restriction proviso," Those clauses, as to all items, go well beyond mere protection of any intangible property interest (common law copyright) he originally may have held in some items, and thereby impinge substantially on what otherwise would have beer some of the Archies' "rights" of present enjoyment of the tangible property itself. In this conner.ion, generally speaking,

the common law copyright embraces only the exclusive
right to "publish," But"publication" is a term of
art, and does not embrace every type of exposure or
present use. Thus, only by impinging on the donce's
tangible property interest, postponing presert enjoy-
ment of it, can the restrictions in the Chattel Deed
be given, as they must, their full literal effect.
Just what use, absent the deed's so-called
"negative-restriction proviso," might the Archives have
made of its tangible personal property without impinging
on the intangible property interests which others may have
held?

Writers who have seriously considered the rights of those who hold only a tangible property interest in correspondence, and have looked at the question of what that property interest

permits such persons to do, have tended to agree with the

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but multiply copies, and perhaps he may do this, if he does not print them." The leading modern treatise on the subject, by Nimmer, adds: "If the library merely

exhibits the letter this is probably not an infringement

of the author's right of publication.

Clearly suggesting arly

that a library, without infringing the common law copyright of an author, could make letters, etc., available at least to research scholars under controlled conditions precluding verbatim reproduction, is the decision of a recent case involving a biographer of Ernest Hemingway. The biographer was held not to have violated the common law copyright belonging to Hemingway's Estate in that the biographer, while using Hemingway's personal letters, did not engage in verbatim copying or verbatin reproduction of the contents. In view of the foregoing, even if one were to assert the "dubious" proposition that Mr. Nixon's intangible property interest itself, if retained, inherently included a right of access in him to use the materials to obtain at least a reproduction copy still Still unaccounted for would be the adverse impact of the deed's so-called "negative restriction clause." It necessarily impacted adversely, as indicated supra, on the Archives present enjoyment of its interest in the tangible property. Less persuasive than the two reasons previously related is a third and final possible reason why the Chattel Deed might be deemed to have limited the United States to a "future interest" even in those tangible properties as to which Mr. Nixon did originally own the intangible common law copyright if Mr. Nixon had coupled with the so-called "initial granting clauses" a simple reservation of his

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common law intangible property interest, it is possible that the Archives, with impunity, could even "publish" the "Materials". The likelihood that this might be the correct technical result turns on the manner in which

two different statutory provisions are reconciled.

The first of these was mentioned earlier; it immunizes the United States and the Archives from liability based on an asserted infringement of a common law copyright 187 which others may still own and may yet exercise.

The unanswered question is whether this general immunizing provision, with its exclusive focus on infringements of intangible property interests, is affected by another special provision dealing solely with Presidential papers. Literally, this second provision appears to refer to its subject in a tangible sense, as "Papers, documents, or other historical materials," and directs adherence by the Archives to donor-imposed "restrictions as to their availability and use...." If this second provision does not override the first with respect to the intangible property interest, then, of course, only because the deed actually impinged on the donee's present enjoyment of the donee's tangible interest was Mr. Nixon able to prevent the Archives from actually "publishing" items in which he stili heid the intangible interest.

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