Re: droit de suite

Hello Marty,

I agree with you 100% that it is not "OK" to breach a right or a law, but my point was, sometimes there may actually be no one with a sustainable claim to the work's copyright. I think the examples being used were where time had passed and people pass away and companies are liquidated etc. so records are hard to track. This is a constant problem and one needing a balanced but also pragmatic approach.

I agree, there is no excuse for ignoring rights where they are validly held and claimed, but if the party claiming copyright ownership via a convoluted chain of copyright has a defective link in the chain, they have no basis for a claim.

On Tue, 11 Apr 2000, Marty Hayes <9ball[_at_]hostsite.net> wrote:
>
> 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.

No Marty, I would never condone or support infringement. I actually do care a lot whether the behavior (both on the part of the party claiming copyright and the party wanting to exercise one or more of the copyrights) is ethical, but I also care that we do not substitute "deserving" for "provable". The issue I was addressing was where the "true" owner cannot be traced despite having made all reasonable efforts to trace them. Where there are owners, of course their rights and interests are paramount.

> 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.

Point taken re: Helen's question: she did ask about "issues" which I interpreted to include the next step - what is the situation where the owners cannot be found. I also noted her absolutely corect wish to do the right thing ethically and legally. And I most certainly did not suggest "how not to get caught" (public use of a work makes detection a no-brainer so getting "caught" is not the issue).

The issue is: what is the remedy and redress available to a rights-owner who, despite diligent searching, cannot be located? The law generally requires rights owners to assert their rights. Failure to do so can give rise to a number of defences. Similarly, as a matter of practice, courts take note of bona fide efforts to locate rights owners.

I happen not to support the "let's trash copyright" school of thought, nor am I all that keen on compulsory/statutory licensing (e.g the mechanical copyright system operating in relation to published musical works) On the other hand, nor do I relish seeing scholarly/public access denied due to an inability to locate a rights owner.

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 Fri Apr 14 2000 - 10:04:22 GMT