Re: copyright expiration as a spur to creativity

On 29, July 1998, Daniel J. Schaeffer <daniel_schaeffer[_at_]kirkland.com> wrote:
>
> On 7/29/98, Amy Stoller <redherring[_at_]tuna.net> wrote:
> >
> > Bob Cumbow <cumbr[_at_]perkinscoie.com> wrote in part:
> > >
> > > Although I think a copyright owner should not lose his copyright as a
> > > result of such a market-driven decision, I wonder about an alternative
> > > scheme: If a copyright owner decides to take a previously-published
> > > work out of print, he does not lose his copyright, but he does lose
> > > the right to obtain damages for infringement of the work during the
> > > time it is unavailable. In other words, making an unauthorized copy
> > > (for personal use, not commercial distribution) of a book that is out
> > > of print and otherwise unavailable would be deemed a fair use.
> > > Comments, anyone?
> >
> > Some random thoughts, not to be confused with considered opinions:
> >
> > I think it would be nice to be able to have a copy of an out-of-print
> > book without fear of reprisal, but I believe that is what used-book
> > stores are for.
> >
> > Does this plan apply only to books? What about magazine articles? Sheet
> > music? Short stories? Essays? Poems? Photographs?
> >
> > At what point in the process would one have to determine that the copy
> > (being) made was for personal use? Who decides? Is it personal use if
> > you let a friend look at it? Is it personal use if you make a copy not
> > for yourself, but as a gift for your aunt?
> >
> > Would it be fair use if you made several copies of an out-of-print
> > book and distributed them for face-to-face teaching? Would it make a
> > difference whether you charged your students for them or ate the costs
> > of copying yourself? Would it make a difference if the copyright owner
> > was not a publisher, but the author, and therefore had no control over
> > whether the book remained in print?
> >
> > How would this plan affect or be affected by the introduction of
> > bookmachines? Would the law be interpreted differently in communities
> > where bookmachines are not available than in communities where they are?
> >
> > I look forward to reading others' responses to Bob's post, as well as
> > Bob's to this.
>
> This is very interesting. People are talking about limiting the
> duration of copyright protection or eliminating such protection on
> out-of-print books -- but f the only reason is so you can make a copy
> for personal use, I'm wondering if the proposed solution is not a bit
> like killing a mosquito with a bazooka.
>
> The four fair use factors -- assuming you get sued for infringing the
> copyright of an out-of-print and unfindable book -- are:
>
> 1. Purpose and character of the use, including whether or not it is
> for commercial purposes.
>
> 2. Nature of the copyrighted work.
>
> 3. Amount of the original work used.
>
> 4. Effect of infringing use on the potential market for or value of
> the original work.
>
> Seems to me that making a copy of a whole book, solely for personal use
> and only because the book can't be bought for love or money, would be a
> pretty good case for a fair use defense. It seems like a slam dunk on
> #4 -- the work has no market to affect, and probably very little value.
> #1 looks pretty good, too, if it's solely for your personal use. #3 is
> obviously a loser if you copy all of the book. #2 is a toss-up -- if
> the work is more creative, this factor counts more against you; if it's
> more factual in nature, this factor may weigh more in your favor.
>
> All in all, if that's the only reason you need a copyright escape for
> out-of-print books, then I don't think the proposed solution is needed,
> especially if you also take into account non-book copyrighted works for
> which the proposal doesn't seem to make sense, as others have mentioned.

My original motive in proposing this scheme was based on many personal experiences in trying to find - and purchase - recent books that somehow went out of print within 2 or 3 years of publication. What is point of publishing them? One may not see references to a book in a bibliography for several years at the earliest; so why should the publisher be so indifferent? If the publisher's copyright would lapse after cessation of in print status, it might stimulate "aftermarket" publishers to reprint the thing. The author would have more freedom to republish if the original publisher is uninterested in continuing.

Michael A Scarpitti
Assistant Editor
Materials Evaluation
1711 Arlingate Lane
PO Box 28518
Columbus, Ohio 43228-0518
800 222-2768 Ext 207
614 274-6003 Ext 207
Fax 614 274-6899
<mscarpit[_at_]asnt.org> Received on Thu Jul 30 1998 - 13:03:17 GMT