For those of you that are still interested in this topic, I recently
came across this at Marty Schwimmer's Trademark Blog.
http://www.schwimmerlegal.com/2006/06/law_review_arti_4.html
Law Review Article on Copyfraud
Mazzone, Jason, "Copyfraud" . Brooklyn Law School, Legal Studies Paper
No. 40 Available at SSRN
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=787244>
Abstract:
Copyfraud is everywhere. False copyright notices appear on modern
reprints of Shakespeare's plays, Beethoven's piano scores, greeting card
versions of Monet's Water Lilies, and even the U.S. Constitution.
Archives claim blanket copyright in everything in their collections.
Vendors of microfilmed versions of historical newspapers assert
copyright ownership. These false copyright claims, which are often
accompanied by threatened litigation for reproducing a work without the
owner's permission, result in users seeking licenses and paying fees to
reproduce works that are free for everyone to use.
Copyright law itself creates strong incentives for copyfraud. The
Copyright Act provides for no civil penalty for falsely claiming
ownership of public domain materials. There is also no remedy under the
Act for individuals who wrongly refrain from legal copying or who make
payment for permission to copy something they are in fact entitled to
use for free. While falsely claiming copyright is technically a criminal
offense under the Act, prosecutions are extremely rare. These
circumstances have produced fraud on an untold scale, with millions of
works in the public domain deemed copyrighted, and countless dollars
paid out every year in licensing fees to make copies that could be made
for free. Copyfraud stifles valid forms of reproduction and undermines
free speech.
Congress should amend the Copyright Act to allow private parties to
bring civil causes of action for false copyright claims. Courts should
extend the availability of the copyright misuse defense to prevent
copyright owners from enforcing an otherwise valid copyright if they
have engaged in past copyfraud. In addition, Congress should further
protect the public domain by creating a national registry listing public
domain works and a symbol to designate those works. Failing a
congressional response, there may exist remedies under state law and
through the efforts of private parties to achieve these ends."
Posted by Marty on June 29, 2006 08:01 PM | Permalink
<http://www.schwimmerlegal.com/2006/06/law_review_arti_4.html>
-----Mensaje original-----
De: CNI-COPYRIGHT -- Copyright & Intellectual Property
[mailto:CNI-COPYRIGHT[_at_]cni.org] En nombre de Dodi Schultz
Enviado el: martes, 30 de mayo de 2006 12:30
Para: CNI-COPYRIGHT -- Copyright & Intellectual Property
Asunto: [CNI-(C)] Re: Question on liability for falsely asserting
I noted that a false assertion of copyright in public-domain material doesn't actually create a copyright or remove the work from the public domain.
Amalyah Keshet and Larry Steller point out, however, that such an
assertion
can be at best profoundly discouraging to creators, and at worst can in
effect prevent legitimate creators from marketing their works, because
of
its chilling effect.
I agree.
--DS
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