Re: Copyright in Arrangement (Was: Re: Academics and coursepacks)

On 23 Jul 1998, Michael Scarpitti <mscarpit[_at_]asnt.org> wrote:
>
> On 22, July 1998, Terry Carroll <carroll[_at_]tjc.com> wrote:
> >
> > On Tue, 21 Jul 1998, Joseph P. Riolo <riolo[_at_]voicenet.com> wrote:
> > >
> > > It is very common that the publishers and authors are not obligated
> > > to tell the readers which part of their works come from the public
> > > domain materials and which part of their works are really their own.
> > > I feel (just my personal feeling, no intention to disparage anyone)
> > > that they are a bit unethical when their works contain public domain
> > > materials and they have made no effort to inform the readers which
> > > parts of their works are actually from the public domain materials.
> >
> > I agree with Joseph on this point. I would like to see a requirement
> > that, where a copyright notice is placed on a work that embodies both
> > copyrighted and public domain material, the scope of the claim of
> > copyright be declared. There is a requirement like this where the
> > public domain material is PD by virtue of its being a work of the US
> > government (in section 403).
> >
> > On the other hand, I should note that section 403 is rather lamely
> > honored. On my own web pages, for example, I simply state "No claim
> > of copyright is made for any work of the U.S. government," which
> > doesn't tell the reader a whole lot. West publications say pretty
> > much the same thing. My copy of BNA's compilation of IP statutes
> > says "No copyright claimed in government or public domain material."
> >
> > I wouldn't mind at all if the requirement a) was extended to other PD
> > material; and b) was tightened to require a specific disclaimer of
> > the material not covered by the claim. Ideally, failure to mark
> > appropriately would provide either a complete defense or a mitigation
> > of damages for infringement.
> >
> > (Note: I expect others would not agree with me on this point, but if
> > this were the requirement, and even if it provided for a complete
> > defense, I would not regard it as violating Berne. I do not propose
> > requiring a notice (which would violate Berne). I propose that,
> > where a copyright owner chooses to include a notice, it must not be
> > misleading, and must disclaim that to which their is no claim of
> > copyright.)
>
> I would like to agree to this, except that the very "public
> domainness" of certain portions of some material may be arguable.
> Publishers may feel then, that they are opening a very large Pandora's
> can of worms.

That's the real problem -- determining what is and is not in the public domain can be a convoluted exercise, with results of questionable accuracy and completeness. Hence, it would be unduly burdensome to require a copyright owner to disclaim public domain materials with any specificity.

This is not just a question of who should bear the burden of identifying public domain material in a published work. The real question is who should bear that burden **when someone chooses to copy the published work**. If you want to copy a published work, and you believe some or all of what you want to copy is in the public domain, then you ought to bear the burden of showing it if necessary.

It also seems to me that the only difference such a requirement would make would be to expose a copyright owner who misclassifies some of his work (even inadvertently) to a "copyright misuse" defense, or perhaps reinstate an "innocent infringer" defense on the basis that he copyright notice, which does not specifically identify all PD material, is invalid.

What would be the point of such a rule?

Daniel J. Schaeffer
<daniel_schaeffer[_at_]kirkland.com> Received on Mon Jul 27 1998 - 14:41:14 GMT