Re: obscure derivative works question

Mark Lemley writes:
>
> Actually, I had always read the language to benefit the user. Rather
> than saying "any taking not authorized by the copyright owner prevents
> the taker from copyrighting the derivative," I read it to mean "any
> taking which was neither authorized nor fair use prevents the
> taker from copyrighting the derivative."

I understand your point, but if one says "any taking which was neither authorized nor fair use prevents the taker from copyrighting the derivative," then one is saying that if there is fair use then the fair user may have copyright. Which, of course, is not what you mean, so there needs to be a syntax revision.

My point is that any copying that is not followed by distribution and/or sale of the copyrighted work should be considered fair use and that's the end of it. It seems to me all these efforts to define "fair use" result in linguistic contortions. It would be better to define what is *not* fair use, and then have everything else as fair use by default. Rights holders can be damaged by distribution and/or sale of a copyrighted work. I don't see how they can be damaged by any derivative copying that does not involve either of these. And it is precisely such copying, derivative copying without distribution or sale of copies, that benefits the public by allowing creative efforts based on preceding work. There should be no word games played with these elements in the law. I suspect the games are there to satisfy commercial interests, but I think the games are nonsensical and not for the public good.

Dan Agin
Spectrum Press
specpress[_at_]earthlink.net Received on Tue Nov 05 1996 - 14:24:47 GMT