There are so many good things to comment on this week, including Posner's discussion of fair use over on the Lessig blog (as Mary has already noted) and the surprising ending of the Jib-Jab case with the revelation that "This Land is Your Land" is likely in the public domain, in spite of what the music publishers maintain) - something I had speculated might be the case early on.
With so much contemporary stuff happening, it seems only fitting to turn to copyright history. On an email list for archivists, someone recently wrote in with the observation that many of their old deeds of gifts used the term "literary property rights," and they wondered what is the difference between "literary property" and copyright?
I think this is a terrific question. I haven't run across any article or chapter that talks about the morphing of "literary property" into copyright (and its sibling, "intellectual property"). Ralph Shaw in his chapter on "What is Literary Property" in his classic Literary Property in the US suggests that literary property encompasses the two kinds of copyright then in existence - common law copyright and statutory copyright - but he doesn't provide any historical analysis for his position (though I like his definition).
I know literary property was often used in the 18th and 19th century, but was it always used to express both common law and statutory copyrights? When and why did it go out of fashion?
One of the interesting issues in the history of copyright law is the rise of "intellectual property" as a term.
Critics of the current copyright system have noted that as soon as you start thinking about copyright as being "property" rather than a government-issued monopoly (which it is), the terms of the debate change. Would we describe someone who violated a government-sanctioned monopoly as a "pirate," for example? Yet music downloaders are often described this way. It would be interesting to see where the term "literary property" fit in the debate.
Someone point me to the literature explaining all this!