As members of Berne, the United States and other countries may discuss and
recommend revision of its terms to correct some of the inequities and
inconsistencies you perceive. That makes a lot more sense than the US simply
not being a signatory to Berne. The political and economic consequences of
that would, in a global IP economy, be inestimable.
Robert C. Cumbow
Graham & Dunn PC
1420 Fifth Avenue, 33rd Floor
Seattle, WA 98101-2390
direct 206.340.9619
fax 206.340.9599
rcumbow[_at_]grahamdunn.com
http://www.grahamdunn.com <http://www.grahamdunn.com/>
Big law firm experience
without the big law firm experienceŽ
-----Original Message-----
From: Susan Aker [mailto:susan[_at_]the-lanman.com]
Sent: Wednesday, October 02, 2002 8:55 AM
To: Multiple recipients of list
Subject: Re: The good fight
I am not a lawyer, but I see little harm in rejecting the Berne Convention - even for our authors.
Berne not only requires copyright to extend beyond the life of the author, but it also requires automatic copyright -- which I hold to be a against all sense. Copyright holders, under Berne, are GIVEN a tremendous gift of time WITHOUT requiring them to take any responsibility - not even to register the work and preserve it against loss by inclusion in the Library of Congress.
The Berne Convention was about Natural Law Copyright, which the Supreme Court (unlike Congress) has always sided against. The United States Constitution clearly defines the power of Congress to establish copyright laws as a law primarily for the advancement of learning by means of a limited exclusive right to publish. This is not, in any way, shape, or form, a natural law way of looking at copyright. I firmly believe that becoming a signatory to the Berne Convention Treaty was unconstitutional.
Susan Aker
The problem with Ms Pollack's proposal is that it would put the US in violation of the Berne Convention, to which we are a signatory, and from which our citizens get significant protections abroad. Probably not a real smart move for the world's largest net exporter of information technology and entertainment content.
Robert C. Cumbow
Graham & Dunn PC
1420 Fifth Avenue, 33rd Floor
Seattle, WA 98101-2390
direct 206.340.9619
fax 206.340.9599
rcumbow[_at_]grahamdunn.com
http://www.grahamdunn.com <http://www.grahamdunn.com>
Big law firm experience
without the big law firm experienceŽ
-----Original Message-----
From: M. Pollack [ mailto:mpollack[_at_]memphis.edu <mailto:mpollack[_at_]memphis.edu>
]
Sent: Friday, September 27, 2002 8:39 AM
To: Multiple recipients of list
Subject: Re: The good fight
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
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
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/ <http://www.copyweb.co.uk/>
> > > ***Important: see
> > http://www.copyweb.co.uk/email.htm <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
>
> __________________________________________________
> Do you Yahoo!?
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-- Malla Pollack Visiting Associate Professor University of Memphis, Law mpollack[_at_]memphis.edu CONFIDENTIALITY NOTICE This email message may be protected by the attorney/client privilege, work product doctrine or other confidentiality protection. If you believe that it has been sent to you in error, do not read it. Please reply to the sender that you have received the message in error, and then delete it. Thank you.Received on Thu Oct 03 2002 - 17:48:38 GMT
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