In Phonographic Performance Ltd v Cody [1998] 4 IR 504, 511, [1994] 2 ILRM 241, 247 (emphasis added), Keane J held that:

Section 60(4) of the Act of 1963 [ie, the Copyright Act, 1963; see now section 77(4) of the Copyright and Related Rights Act, 2000] provides that no right in the nature of copyright “shall subsist otherwise than by virtue of this Act or of some other enactment in that behalf”. The right of the creator of literary, dramatic, musical or artistic work not to have his or her creation stolen or plagiarised is a right of private property within the meaning of Articles 40.3.2 and 43.1 of the Constitution, as is the similar right of a person who has employed his or her technical skills and/or capital in the sound recording of a musical work. As such, they can hardly be abolished in their entirety, although it was doubtless within the competence of the Oireachtas to regulate their exercise in the interests of the common good. In addition and even in the absence of any statutory machinery, it is the duty of the organs of the State, including the Courts, to ensure, as best they may, that these rights are protected from unjust attack, and in the case of injustice done, vindicated. The statements in some English authorities that copyright other than by statutory provision ceased to exist with the abolition of common law copyright are not necessarily applicable in Ireland.

[Note: some subsequent treatment of this dictum in Cody in noted on this blog here; in the case itself, Keane J’s interpretation of Order 39, Rule 1 (RSC) was reversed by the Supreme Court without reference to this constitutional point ([1998] 4 IR 504, [1998] IESC 64 (16 February 1998))].

If this is an application of the much debated natural rights/labour desert theory of property to the copyright context (associated, for example, with Millar v Taylor (1769) 4 Burr 2303, 98 ER 201, [1769] EngR 44 (20 April 1769) (pdf) (wikipedia), then there many problems with this approach. The natural law approach to copyright was repudiated in Donaldson v Becket (1774) 2 Bro PC (2d) 129, 1 ER 837, [1774] EngR 47 (22 February 1774) (pdf); (1774) 4 Burr 2408, 98 ER 257 (pdf) (wikipedia) and therefore could not have survived into the modern Irish constitutional order. Of course, on a natural rights view of the Irish Constitution, then the Article 40.3/43 view of property can be seen as predating the Constitution and embodying the natural rights approach to copyright. This in turn raises the legitimacy of such a view, and a post last Friday on the Patry Copyright Blog (returning to an issue about which he has blogged in the past) about The Natural Rights Issue is very much on point [with additional links]:

Claims that copyright involves human rights or is a property right are based on the theory that copyright is also a natural right — a right that exists independent of legislative enactment, even if there are legislative enactments. In the United States, copyright is not a natural right, since the Supreme Court has said so twice, first in 1834 in Wheaton v Peters [link], and then in 1932 in Fox Film Corp v Doyal [link]. Yet, rhetoric based on a natural rights basis for copyright are behind all the claims that those who use copyrighted works without permission are thieves or pirates. If copyright is instead a limited privilege that parcels out limited control to copyright owners, one might view issues differently.

Professor Tom Bell [link] has a draft of a book that takes on these issues and many others, called “Intellectual Privilege: Copyright, Common Law, and the Common Good,” available here. There is a lot of good thinking and research, and I encourage others to read it.

Bell’s views are very interesting; an excerpt from his introduction:

Two views monopolize the ongoing debate over copyright policy. One view denigrates all restraints on copyrighted information, whether they arise from statutory law, common law, or technological tools. The other view equates copyrights to tangible property, concluding that they merit a broad panoply of legal protections. Left-wingers tend to favor the former position; right-wingers the latter.

I here offer a third view of copyright. I largely agree with my friends on the left that copyright represents not so much a form of property as it does a policy device designed to “promote the Progress of Science and useful Arts” (as the Constitution puts it). I thus call copyright a form of intellectual privilege.

Like my friends on the right, however, I hold our common law rights in very high regard. Hence my complaint against copyright: it violates the rights we would otherwise enjoy at common law to peaceably enjoy the free use our throats, pens, and presses. That is not to say that copyright is per se unjustified. We can excuse facial violations of our common law rights, such as the takings effectuated by taxation or the restraints imposed by antitrust law, as the costs of obtaining a greater good. But it does mean that copyright qualifies, at best, as a necessary evil.

You might say, in other words, that this book invokes a physiological improbability: a third hand. Traditional discussions of copyright policy don’t require more than the usual allotment of appendages. On the one hand, we can disparage copyright together with all other means of protecting expressive works. On the other hand, we can exalt copyright as a form of property more powerful than any common law right to the contrary. If we limit ourselves to those two hands, however, we will have to embrace a false dichotomy. In thought, if not in body, we can best grasp copyright policy “on the third hand,” recognizing that it cries out for justification because it violates our common law rights, and justifying it-if we can-only as a necessary and proper mechanism for promoting the general welfare.

This third view suggests a great deal about both how present copyright policies malfunction and how to fix them. Most significantly, it opens our eyes to the benefits of an open copyright system, one that encourages authors to rely solely on their common rights and to fully respect our own. Thus might we someday outgrow copyright, discovering that the common law does a better job of promoting the common good.

Update: the links to Bell above are dead, but the book is available here.