Roman Law, Private Property and the Public Domain: Lessons for Copyright Policy

© Springer International Publishing Switzerland 2015
Brian Fitzgerald and John Gilchrist (eds.)Copyright Perspectives10.1007/978-3-319-15913-3_3

3. Roman Law, Private Property and the Public Domain: Lessons for Copyright Policy

Arthur R Emmett 

New South Wales Court of Appeal, Level 12 Law Courts Building, Queens Square, Sydney, NSW, 2000, Australia



Arthur R Emmett

3.1 Roman Law and the Common Law1

The greatest gift that the ancient Romans have left to posterity has been their law and legal principles. That law is derived from the Code, the Digest and the Institutes of Justinian, which are together generally referred to as the Corpus Iuris Civilis.

In ad 476, the city of Rome fell to the barbarians and there was no longer an emperor in the West. What remained of the Roman Empire was ruled from Constantinople, in the East. When Justinian became emperor in Constantinople in ad 527, he conceived the idea of re-establishing what he perceived to be the lost greatness of Rome. One of the pillars upon which Justinian intended to found the re-establishment of Roman greatness was an authoritative codification of Roman law.

Justinian’s first step was to order the compilation of a collection of imperial enactments that were still relevant and in force. That first step was completed in ad 529, with the publication of the Code, which was updated in ad 534. The second step was the preparation of the Digest, which was to be a compilation of the writings of the classical Roman jurists. The Digest was published in accordance with Justinian’s instructions in ad 533.

Together, the Code and the Digest were close to twice the size of the Bible. The nature of both compilations was such that, while they constituted authoritative reference works, only those already skilled in the law had the capacity to find a way through the material contained in them. Justinian perceived, therefore, that a textbook containing the first principles of all learning in the law would also be required in order to instruct students of law and to provide a map of the law. Accordingly, Justinian gave instructions for the preparation of a text book for students called the Institutes, which was published in ad 533.

At the end of the eleventh century, the law school of Bologna, the oldest university of Western Europe, began to teach the law of the Corpus Iuris Civilis. The fame of that law school spread throughout the whole of Europe in the centuries thereafter and, in consequence, the jurisprudence of the Corpus Iuris Civilis became the jurisprudential foundation of all modern European law systems.

By 1150, Roman law was being taught at the University of Oxford. Soon after, it was being taught at the University of Cambridge. At that time, Roman law was habitually cited in the law courts of England and relied upon by legal writers. Henry of Bracton’s De Legibus et Consuetudinibus Angliae, published in 1256, was probably the first important book on English law. Bracton wrote in Latin and resorted extensively to the Corpus Iuris Civilis in compiling the work. Roman law supplied him not only with a framework under which his English subject matter could be fashioned into an articulated system of principles, but also with a precise technical vocabulary with which to describe and analyse the material. Bracton’s treatise was very influential in many areas of Anglo-Norman jurisprudence, particularly after it was referred to favourably by William Blackstone.

During the time when the development of Anglo-Norman jurisprudence was in the hands of practitioners in the Inns of Court, the members of the Inns were often educated at Oxford and Cambridge. Henry VIII founded the Regius Chairs of Civil Law in both universities and the study of law at those institutions entailed, for the most part, the study of Roman jurisprudence. Accordingly, civil jurisprudence, founded on the Corpus Iuris Civilis, continued to affect Anglo-Norman jurisprudence through the universities.

Further, there was an international character attached to the dealings of merchants and mariners that gave rise to a need for universality in the principles of law governing their dealings. It was necessary that such principles be generally the same in the various countries visited by merchants and mariners. The law merchant developed out of that necessity. The growth of trade among the city states of Italy coincided with the rediscovery of the Corpus Iuris Civilis, which provided a convenient source of principles for the resolution of disputes involving merchants and mariners. While the law merchant was different from the ordinary law and was in fact administered by different courts, Edward I recognised the law merchant as part of the national law of England.

English jurists also had resort to Roman jurisprudence where there was no clear rule on a particular subject. For example, the law of easements, which developed in England and Wales in the early nineteenth century, was based entirely on Roman jurisprudence.

3.2 Copyright Today

Section 32 of the Copyright Act 1968 (Cth) provides that copyright subsists in an original literary, dramatic, musical or artistic work that is unpublished, provided that the author has a relevant connection with Australia at the time when the work was made. Under s 22, a work is made when the work is first reduced to writing or to some other material form. Under s 10, “writing” means a mode of representing or reproducing words, figures or symbols in a visible form, and “material form”, in relation to a work, includes any form of storage from which the work can be reproduced.

Section 31 provides that copyright, in relation to a work, is the exclusive right to do the things set out in s 31(1)(a), (b), (c) and (d). Under s 31(1)(a)(i), one of those acts is to reproduce the work in a material form. Under s 32(2), where an original, literary, dramatic, musical or artistic work has been published, copyright subsists in the work or, if copyright subsisted before its first publication, copyright continues to subsist in the work, if there is a relevant connection with Australia. The term of copyright in a work is 70 years after the death of the author or artist.

Under s 8, copyright does not subsist otherwise than by virtue of the Copyright Act. Further, copyright is not a proprietary right in an existing tangible thing. That is to say, it is not a right that can be enforced in rem. It can only be a right that is enforced in personam, to prevent reproduction or copying of a particular form of expression or to recover compensation where there has been an infringement. In that sense, it is an intangible or incorporeal interest. Thus, the right conferred by the Copyright Act gives no right in the physical medium on or in which a work is first recorded, expressed or embodied. Copyright is a right that is distinct from any property in the physical medium on or in which the subject matter of the copyright is recorded, expressed or embodied. The purchase of a physical medium on or in which a copyright work is recorded, expressed or embodied gives no copyright in the work, although it will give ownership of the physical medium. Ownership of a book or a manuscript or a canvas confers no copyright, in respect of the work recorded on that medium, to the owner of the medium.

If a literary, artistic literary or dramatic work is not written or recorded in some material form, being a form of storage from which it can be reproduced, copyright will not subsist in it. Accordingly, the work will be in the public domain, owned by the public at large. In addition, a work in which copyright does subsist can enter the public domain, by operation of law, when the copyright expires.

3.3 Roman Property Law

The Romans held that certain types of property, namely res communes and res publicae, were incapable of private ownership. Res communes, such as the air, the sea and the seashore, were things of common enjoyment available to all living persons by virtue of their existence.2 Res publicae consisted of public roads, bridges, ports, market places, theatres, baths and rivers.3 Persons enjoyed them as an inhabitant of the state. Res communes belonged to mankind as a whole, while res publicae belonged to the Roman people.

The Romans developed the concept of incorporeal property.4 That is to say, they recognised a proprietary interest that could not be touched or handled. A book or a parcel of land is corporeal, or tangible, property. Each can be seen and possessed. Incorporeal, or intangible property, on the other hand, cannot be seen or possessed. An easement or a usufruct is incorporeal property. An easement or a usufruct is a ius in rem, albeit a right in someone else’s property. An obligation, such as a debt or a claim for damages for wrongful conduct, is also intangible property. However, it is a ius in personam.

The Romans described usufruct as the right to the enjoyment and fruits of another person’s property, with the duty to preserve its substance.5 It is a right in a corporeal thing of another person. Thus, usufruct has to be split off from ownership. A usufruct could be for a fixed period or for life. In the latter case, it was similar to a life estate in the common law. The usufruct was a proprietary right enforceable in rem, because it was a right enforceable over the property, whoever happened to be the owner of the property. However, it could only be enforced by the person to whom the usufruct was granted. It was therefore described as an interest that was personal to the holder. The interest, however, could not be touched or possessed, although the interest could be exercised. The interest was incorporeal.

The Romans also treated an obligation owed by one person to another as incorporeal property. Such an obligation may arise out of contract or out of tort or wrong-doing, or delict as the Romans called it.6

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