Trotter Hardy's fairly uniform response to my comments concerning
the need for compulsory licenses is "Not enough money involved."
He also says that my arguments are inapplicable to Cable TV. But
I was using the cable TV provisions by analogy to discuss problems
with electronic works.
NOt enough money involved is a major part of the problem. Most works earn more than 90% of the royalties they will ever earn in the first year after publication. But copyright lasts much longer and most works will not enter the public domain for 50 to 100 years later (life plus 50 or 75 years). Thus when "not enough money is involved" for the licensors to be interested in finding ways to license electronic versions of the works, potential licensees have no way of using the information even if they are willing to pay for it. The result is that under the current version of the law, comprehensive efforts to create electronic libraries are doomed to failure and a substantial amount of information is truely lost to the electronic world.
We didn't have a similar problem in the print world. The copyright act contains sufficent provisions to permit ordinary uses and presevation of works even after the returns drop to the point where copyright owners have no incentive to license. But this isn't true of electronic works. Some key provisions of the Act applicable to print are not applicable to machine readable works. In addition, most of the act permits reproduction when necessary for ordinary uses and preservation. But reproduction isn't enough for electronic works. You also need public performance and display rights in order to cover the ordinary uses of electronic works. But the sections of the act concerning public performance and display are pretty much oriented toward audiovisual and dramatic works rather than electronic works. They don't seem to contemplate that public displays and performances are often necessary simply to perceive the information contained in electronic works.
So what needs to be changed? Either we need some fine tuning of the current Act or some form of *comprehensive* compulsory licensing or a shorter copyright term. Unfortuneately, I don't think any of the above are likely to happen. In fact, there is a movement that wants to increase the term even further to life plus 70 years.
Mary Brandt Jensen CNICOPY[_at_]CHARLIE.USD.EDU Professor of Law (605) 677 6363 University of South Dakota (605) 677 6357 faxSchool of Law
------------------earlier messages below--------------------------Mary Brandt Jensen writes:
>
> If tracking down licensors is no problem, why have the following
> happened?
>
> 1. The Library of Congress gave up trying to get permission from
> copyright holders for the American Memory Project
Not enough money involved.
>
> 2. A project in Oklahoma was scraped that would have included
> tables of contents of books in an enhanced catalog on CD because
> of the inability to track down copyright holders.
Not enough money involved.
>
> 3. The imaging project at the Law Library at Chicago-Kent has
> been confined primarily to public domain materials.
Not enough money involved.
>
> 4. A grant to preserve old theater play bills and newspaper articles
> about old films and shows was unable to get a grant because of
> the inability to come up with a reasonable means of getting permission
> from copyright holders.
Not enough money involved.
>
> Trotter, if you really think tracking down copyright holders is easy,
> would you like to volunteer to help Project Gutenberg track down the
> copyright owners for works almost ready to enter the public domain?
No thanks. :)
Our original discussion was in the context of cable tv, I believe (though memory fades very quickly in the fast-paced world of e-mail). I suggest that in cable TV the problem of tracking down copyright holders would be a trivial problem because there IS money involved and holders would make sure that prospective licensees were notified.
In other areas, where little money is at stake, the problem would doubtless be different. It's a transaction cost; the law doesn't guarantee low transaction costs for every new endeavor that one would like to undertake.
--Trotter Hardy
+-------------------------------+------------------------------------+ | thardy[_at_]mail.wm.edu | Prof. I. Trotter Hardy | | Voice: (804) 221-3826 | Marshall-Wythe School of Law | | Fax: (804) 221-3261 | College of William & Mary | | BBS: (804) 221-1137 | Williamsburg, VA 23187 | +-------------------------------+------------------------------------+Received on Tue Sep 21 1993 - 19:17:00 GMT
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