Re: droit de suite

On Sun, 9 Apr 2000, Colin Seeger <seeger[_at_]ozemail.com.au> wrote:
>
> A number of commentators [...] 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 [...] 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 [...] 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.
>
> 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.

And, on another of yesterday's postings,

On Sun, 9 Apr 2000, Colin Seeger <seeger[_at_]ozemail.com.au> wrote:
>
> On Thu, 6 Apr 2000, Helen Dunne <hdunne[_at_]museum.vic.gov.au> wrote:
> >
> > Considering we are not making a replica of the watch nor selling
> > a similar make, is there anything we should be doing before we
> > display the photograph of this watch for Museum purposes so that
> > any IP issues isn't breached?
>
> The "de minimis" principle should be applied here. There might be
> a technical breach but being pragmatic -- what would be the remedy?
> An order to take the imade from public display. Not such a big deal.
> Damages? Unlikely. The potential for an adverse claim? Negligible.
> Can't see any reason to lose hair on that one.

Sooooooooo, let me see if I get your point, Colin. It's okay to infringe on others' rights, be they property rights or copyright rights or any other rights, as long as there's a strong chance that you won't be held legally accountable for doing so. In fact, key, it's okay to break any law you want as long as your chances of being held responsible for your actions are *neglible* or *unlikely*. "There may be a technical breach, but..."????? No, Colin, not a technical breach. It's a breach. PERIOD.

It appears it doesn't matter to you that the activities in question may not right *ethically*... it only matters that you won't be held legally responsible. If that's your position as a lawyer, then I am truly saddened. What saddens me even more is your interpretation of the questions that were asked.

When I read those questions posed to the group, *I* read them with the thought that these people wanted to make sure they were doing the right thing as a matter of ethics and conscience. Helen said, "how do I make sure I don't breach any IP issues", NOT "how do I make sure I don't get caught/prosecuted for breaching." The discussion about losing access to works due to inability to find rightsholders, etc. was one that made suggestions on how to make the LAW more reasonable (at least in theory), not how to disregard the law.

All I can say is, no wonder the world is the way it is today. No respect for anyone else or for what is *right* anymore.

Marty Hayes
<9ball[_at_]hostsite.net> Received on Tue Apr 11 2000 - 17:00:31 GMT