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

On 7/29/98, Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> On Mon, 27 Jul 1998, Daniel Schaeffer <daniel_schaeffer[_at_]kirkland.com> wrote:
> >
> > On 22, July 1998, Terry Carroll <carroll[_at_]tjc.com> wrote:
> > >
> > > 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).
> >
> > 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.
>
> I think that's where we disagree as a matter of policy. In my mind,
> someone pasting a copyright claim on a work known to be a mixture of
> copyrighted material and public domain material, should make the scope
> of his claim clear. It seems burdensome to me to move that burden
> to a potential copier, because it effectively allows the claimant to
> presumptively lay claim to public domain material. I do not believe
> that that presumption is justified.
>
> > What would be the point of such a rule?
>
> To reduce the tendency of publishers to claim more copyright than they
> have as an inhibitory tactic.

Again, we're talking about public domain status, which I think you'll agree can be difficult to pin down. Also, we're talking about someone copying from a published work rather than putting together his own work. IMHO, If someone wants to use a portion of a published work, then he had better be pretty sure the portion is in the PD, or that the use is fair use, or else he's infringing.

As for publishers "claiming more copyright than they have" -- what does this mean? If something is in the PD, then a publisher can't claim copyright in it, regardless of what the copyright notice says. (A publisher may be edging on copyright misuse or something like that if it does so.) But if I'm a publisher and someone copies my book, you can bet I want to be able to "inhibit" him -- unless the portion is in the PD or the copying is fair use.

Tell me -- if you think the material on pages 12-21 of a book are or may be PD, are you significantly less inclined to copy that portion just because the copyright notice doesn't say "Copyright (except as to pages 12-21) 199X PublishCo"?

Which leads me to the next question: We've seen that West and others expressly disclaim any copyright in PD materials, but only as a general matter. How much specificity is required? If I publish a book that contains a bunch of quoted material, scattered throughout the pages, and some of those quotes are PD, but others are not (and are used by permission, of course), how should my copyright notice read?

***

My opinions and mine alone. Don't blame my employer. (And don't blame me for my employer's opinions.) And don't use my comments as legal advice. That's as stupid as... well, as a really stupid thing.

Daniel J. Schaeffer
<daniel_schaeffer[_at_]kirkland.com> Received on Wed Jul 29 1998 - 15:11:02 GMT