Re: The good fight

From: M. Pollack <mpollack[_at_]memphis.edu>
Date: Fri, 27 Sep 2002 10:38:30 -0500

OK. I want to change the ground rules roughly back to when Kastenmeir headed the House subcommittee that deal with copyright etc.-- no increase in copyright holders' power to exclude others until the copyright holders prove (not just claim) that they are not getting enough to pay for the original creation. IMHO the current statute intentionally gives copyright holders much much more. But the cut back can be done in many different acceptable ways.

        For example, the author of a so-called derivative work that contains over 80% original content (number needs discussion) should not have to ask permission to use material from an earlier work. Whether the copyright holder of the underlying work should get a statutory royalty should depend on a flexible balancing test -- way David Lange proposed this at the Duke Public Domain Seminar roughly a year ago.

        When copyrights and patents end, they should end -- no stretch by way of some form of trademark or unfair competition rights -- in some circumstances, to prevent consumer confusion, the re-user may be required to provide an informative label (i.e.. Kellogg v National Biscuit; Sears; Compco).

        The term of copyright should go back down to 24 years and a renewal term of another 24 years. Anyone should be allowed to reuse any work she sees without a copyright notice -- though in some circumstances the copyright holder of the underlying work might be entitled to a royalty.

        "Divestive publication" should be decided based on the public's access to the work, not the pro-author mishmash currently used. A song sold on records etc. should be considered published.

	Computer software should not be copyrightable.  
	Reading something on a computer should not be making an illegitimate
copy.
	The look and feel theory of substantial similarity in copyright should
be abandoned.
	Research should not be patent infringement, i.e. a "fair use" exception
as argued for by Maureen O'Rourke (I apologize if I misspelled her name)
	Patent should be limited to the technological arts (as required by the

US Constitution). The decision on whether something is "patentable subject matter" should involve looking only at the "inventive step."

	Lots of etc. 
	IMHO, intellectual property rights are supposed to "leak."  The control

given the original creator should be no bigger than absolutely necessary to get the creator to create.

        I invite you to have fun snipping at these proposals, if I don't respond, it will be for lack of time, not for lack of available responses.

	Long live the public domain,
	Warmly, :-) [smile]
	

Keith Tabor wrote:
>
> I think the point ofg the post is "What scheme would
> you favor?"
>
> It is easy to poke hole in the current scheme because
> we know so much about it. I can't tell you what is
> wrong or right about your scheme because I know
> nothing about it. Share and we will see if you get any
> converts!
>
> Keith
> --- "M. Pollack" <mpollack[_at_]memphis.edu> wrote:
> > No one is suggesting that "we" junk copyright. Just
> > that it not be
> > bloated. Reasonable minds may differ, but IMHO (and
> > I am far from
> > alone) the extent of control currently given
> > copyright holders is very
> > bloated.
> > Unlike tangibles, furthermore, the economically
> > minded agree that social
> > welfare is enhanced by a lesser degree of control.
> > See, for example, the
> > Posner and Landes article circulated in the most
> > SSRN updates -- arguing
> > for requiring reregistration of copyrights at the
> > end of each short
> > period so that "Copyright" does not unnecessarily
> > tie up works which are
> > no longer earning royalties. While I would favor a
> > different scheme, I
> > mention this one merely to underline P&L's economic
> > conclusion that
> > long-term copyright for many works is not social
> > beneficial.
> >
> > Edward Barrow wrote:
> > >
> > > On Monday, September 23, 2002 3:56 PM, M. Pollack
> > > [SMTP:mpollack[_at_]memphis.edu] wrote:
> > > > Ah! That is the whole point! Deserve should have
> > a lot to do with it.
> > > > And deserve always comes up when someone wants
> > to change or strech the
> > > > doctrine. The only reason that the market
> > "rules" so much is that we
> > > > (human beings) allow this to happen. The market
> > is shaped by existing
> > > > law and does not have to make high protectionist
> > choices. If a multitude
> > > > of basically good persons (esp. attorney &
> > politicians) in combination
> > > > form an institution where "deserving" is not
> > material, we need to reform
> > > > the institution-- perhaps by insisting that each
> > actor take
> > > > responsibility for her own choices. Or to quote
> > the great sage Hillel:
> > > > If I am not for myself, who will be for
> > me? But being for myself alone,
> > > > what am I? And if not now, when?
> > >
> > > I don't think this argument is particular to
> > copyright material, but to the
> > > whole of economics. The concept of the deserving
> > "just price" - - for any
> > > good (different from the market price) is
> > extremely difficult; no-one has
> > > yet found a way to determine such a thing
> > objectively, although we all have
> > > our own subjective notions of what it should be.
> > The countries of the
> > > former Soviet block tried non-market methods of
> > determining prices, without
> > > a great deal of success.
> > >
> > > Copyright arguably increases the market price, for
> > everyone except the
> > > first purchaser of a work. But in the absence of
> > copyright, the first
> > > purchaser must cover all the author's costs of
> > time, materials and risk.
> > > Private patronage by the wealthy, and state and
> > commercial sponsorship are
> > > all possible alternatives to copyright; but
> > throughout the many months of
> > > these exchanges I have yet to see the
> > anti-copyright camp either promoting
> > > these alternatives or suggesting others.
> > >
> > > Edward Barrow
> > > New Media Copyright Consultant
> > > http://www.copyweb.co.uk/
> > > ***Important: see
> > http://www.copyweb.co.uk/email.htm for information
> > > about the legal status of this email ***
> >
> > --
> > Malla Pollack
> > Visiting Associate Professor
> > University of Memphis, Law
> > mpollack[_at_]memphis.edu
>
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-- 
Malla Pollack
Visiting Associate Professor
University of Memphis, Law
mpollack[_at_]memphis.edu

Received on Fri Sep 27 2002 - 15:31:01 GMT