Re: copyright -- opt out?

Steve Heaton <stephen.m.heaton[_at_]awo.com> wrote:
>
> Is there a recognized way for an author to disclaim copyright in a
> work s/he authored, such that that disclaimer is effective and
> binding on "the world"?
>
> Example as to why one would want to do this. Let's say one wanted to
> license database property under terms that some might find to be very
> draconian and would be concerned that the licensee might later challenge
> the license and its continued enforcement on grounds such as copyright
> misuse.

What is the precise purpose of the license?

> Now, although a successful copyright misuse defense might only
> "de-enforce" the copyright anyhow, by licensing pre-disclaimed property,
> the licensor might have a stronger argument that the license must be
> upheld and its enforcement continued notwithstanding the conduct said
> to constitute misuse since clearly the grounds for the license was not
> copyright (due to the disclaimer) but, say, chattel property ownership
> of a particular copy of the database.

First a general remark about database: as provided by the Feist case copyright protection in database is "thin". It is only concerned with the selection and arrangement of the material included in the database. Hence if the license goes beyond this in extending the protection over the content of the work the licensee may well have a basement to claim copyright misuse.

I do not think that copyright disclaimer is a good solution. The purpose for the author is to get as much protection as he can i.e to get protection somehow over the content since that what makes the value of the database (generally; sweat of the brow database). Neither copyright nor "chattel property ownership" offer satisfactorily protection.

Besides I fear that there is a confusion between the property in the copyright work and in the copy of the work. Property in the copy of the work only allows you to use the work and does not provide you with a right to exploit it.

Finally, the sui-generis right provided by the EU database Directive (11 March 1996) appears to be the best solution. It protects the content of the work (right of unfair extraction and re-utilisation) in a limited way. There is no risk for the copyright owner or sui generis right holder to face a misuse defense. Nevetheless I do not think that the american copyright law is in favour of such solution? (The basic proposal in respect of database (WIPO Treaty 20 December 1996) was never adopted).

Alan Ragueneau.
aragueneau[_at_]oceanet.fr Received on Tue Jun 09 1998 - 08:21:24 GMT