First, I must mention how way cool it is that Judge Richard Posner is blogging this week at the Lessig Blog. He doesn't specifically mention libraries, but he just blogged:
"... I believe, copying of old copyrighted works should be permitted if the copyright owner has not taken minimal steps to place copiers on notice of his interest."
-- Judge Richard Posner, Fair Use Elaborated blog entry Aug 23
Alas, although this enlightened thinking would allow libraries to digitize a lot more old stuff, it's his unofficial opinion. It's not the law. We're stuck with a regime that does not require such notice. Used to be that works could enter the public domain for lack of notice, but now works published 1978 and later are not required to have notice. The Berne treaty says no notice can be required. We need to change the law, but how?
Judge Posner has a forthcoming law review article that may show us the way:
Bill Patry, a distinguished copyright lawyer and treatise writer, and I have written an article soon to be published in the California Law Review in which we advocate an interpretation of “fair use” that would solve the major problem that extending the copyright term creates. We argue that it should be considered fair use to copy an old work if the copyright owner hasn’t taken reasonable steps to provide notice of his continued rights, as by entering his name and address in a copyright registry. Given such a rule, such registries (which have counterparts in the case of works of visual art) would spring up overnight. Then if an Eldred wanted to publish some old work, he would consult the registry or registries and if no owner was listed (which would usually be the case, because most old works have no commercial value and so their owners won’t bother to try to keep them from falling into the public domain), he could publish it without a license.
-- Judge Richard Posner, Fair Use and Licensing blog entry Aug 23
I'm curious myself to see how Judge Posner can find a way to work around Berne, even for U.S. works.
Donna Wentworth wrote on the Corante blog at http://www.corante.com/copyfight/archives/005843.html:
"In a conversation on the Cyberia-L email list, CIS Fellow Chris Sprigman argues that Judge Posner's suggested "fix" for the copyright term extension problem is flawed because it may not pass muster under the Berne Convention, and, by extension, the TRIPS accord. So in a forthcoming issue of the Stanford Law Review, Sprigman will propose his own solution: restoring to copyright law the sort of formalities that copyright holders like Ludlow Music, Inc. have occasionally messed up.
An advance copy of Sprigman's piece is available [PDF] @ the CIS weblog."
http://cyberlaw.stanford.edu/blogs/sprigman/archives/Reform(aliz)ing_Copyright12.1.pdf
Posted by: Mary | August 26, 2004 at 01:42 AM
Very interesting but only a solution for the US.
The internet is a global phenomenon.
It is very difficult for web projects like the Wikipedia (US server, national branches) to know if a picture (or work) is Public Domain worldwide. A well known photograph of Churchill is Public Domain in Canada but not in Germany:
http://rw22linux5.jura.uni-sb.de/pipermail/urecht/Week-of-Mon-20040823/001708.html
I do not know the legal status of this picture in the US.
It seems that one has to respect the longest copyright term (70 years pma?) which could found worldwide in a national law if he wants to avoid risks.
In the case of US federal government copyright it seems that these works are de facto Public Domain outside of the US because the government has the rights and would not claim them. Right?
Posted by: Dr. Klaus Graf | August 25, 2004 at 04:27 PM