Appropriating creative works protected by intellectual property rights

• Author: Cornelia Dumitru
• Position: PhD Candidate, 'Nicolae Titulescu' University, Bucharest (e-mail: cornelia_dumitru1973@yahoo.com).
• Pages: 28-42

APPROPRIATING CREATIVE WORKS PROTECTED

BY INTELLECTUAL PROPERTY RIGHTS

Cornelia DUMITRU*

Abstract:

The ownership, either public or private, is an expression for appropriating goods. Consequently,

the appropriation takes the form of private (i.e. p rivate property) and common forms (i.e. public

property). The common law property defines appropriation as „a deliberate act of acquisition of

something, often without the permission of the owner”, but the intellectual p roperty rights do not

protect goods. Particularly in this case „the object” of appropriation does not represent a „res nullius”

simply because the intellectual property right arises from the act of creation, therefore the

appropriation of somebody else’s creation becomes equivalent with stealing (plagiarism).

Consequently, if we are to admit that the authors have a right of ownership over them, then ownership

in intellectual property law has (it mu st have) other manifestations than those known and accepted in

the common law of property.

Keywords: appropriation, goods, intellectual rights, property, authors.

1. Difficulty of properly qualifying

intellectual property rights and its

consequence on the „ownership” and

control over intellectual creations*

Trying to determine and clarify the

legal nature of the rights the authors have

over their intellectual creations, we should

firstly consider the concept of

„appropriation” and treat it with special

attention. First of all we should d raw

attention to the fact that most of

lawyers/jurists use the concept as a default

one, not taking into consideration any

particular explanation or d emarcation. This

comes from the customary use of

„appropriation” in the common law of

property. However, considering „

appropriation” within the frame of the

special right of authors over their

* PhD Candidate, “Nicolae Titulescu” University, Bucharest (e-mail: cornelia_dumitru1973@yahoo.com).

1

This is the case of The Libertarians, The Pirate Party in Germany and the Nordic Countries, but also of many

challengers, quite vocal lately, supporting the current known as „copyleft”, in opposition to copyright, as shown.

intellectual creations, we must delineate

special uses of the concept.

Accordingly, „intellectual property

law” is seen as a particular kind of law

because its nature is difficult to be

determined and stated categorically despite

the fact that it has been enshrined as such in

both conventional law and le gal systems of

the countries in continental Europe. The

intellectual property law is still referred to

as controversial as long as disputes relati ng

to it have never ceased or been ex hausted

not even nowadays - neither in terms o f

recognizing its existence, le gitimacy and

necessity, nor in terms of its legal nature.

There are opinions that it should not be

recognized at all for the reason that

copyright is the enemy of access to

information and knowledge and, ther efore,

is an enemy of freedom

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.

From its early beginning, in France,

the country that speaks a nd writes the most