A number of commentators, particularly Eric Eldred (really enjoyed your last posting by the way -- I was pondering for quite some time on your last big posting), have raised the prospect of would-be commercial users of a copyright items/works being thwarted by not being able to identify the owner due to the passing of time and/or loss of corporate records.
But (here comes the rhetorical device) is this really the problem it may at first seem?
As an ex-trial lawyer I used to run complex copyright litigation and acted for plaintiffs and defendants (in different cases, I hasten to add) and there was nothing more welcome -- as a defendant -- than an old and crusty copyright chain, nor more terifying for a would-be plaintiff.
The fact is, to get a claim off the ground, a would-be plaintiff has to establish locus to sue and then prove the copyright chain and rights derrived from the author right through all steps to them, with a complete chain of properly executed assignments or exclusive licences, all containing the correct rights and powers to sue.
It is ever so easy to poke holes in weak chains of copyright and, given the costs penalties a baseless claim will incur in this jusisdiction, only the most bold plaintiff will even try to assert a copyright without at the very least a reasonably sustainable chain of title.
My point is this -- if the chain of title is really murky (a pretzel of title as someone once described it) than it is unlikely anyone has the status to sue successfully or even to mount a prima facie case for an injunction.
Evidence of a bona fide attempt to find the owner will be a powerful defence to any claim for damages should an owner pop out of the geriatric home or the corporate graveyard.Given evidence of good faith dealing, the appropriare remedy should be commercial royalties rather then apunitive damages but our US friends may have a different view of the US legal system's response to that situation.
One has to be pragmaic and not let copyright gridlock get in the way of commerical reality. I am not advocating any "steamroller" approach but, before saying "we can't find the owner so we can't do anything", maybe it's not that clear-cut.
A spectre holding a ghostly sword is still just a spectre, with limited power to harm the still living ("Sleepy Hollow" fans need not take any notice of this posting).
CS
"Galvanising Ideas"
Colin Seeger, Consultant, Management of Intellectual Property. P.O Box 3227, Tamarama, Sydney, Australia 2026 Tel: (61) (02) 9365 1186, Fax (61) (02) 9365 1286 <seeger[_at_]ozemail.com.au> Received on Sun Apr 09 2000 - 04:31:16 GMT
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