Re: copyright expiration as a spur to creativity

Patterson and Lindberg formulate the following rule of personal use:

     An individual's use of a copyrighted work for his or her own
     private use is a personal use, not subject to fair-use re-
     straints. Such use includes use by copying, provided that the
     copy is neither for public distribution or sale to others nor
     a functional substitute for a copyrighted work currently 
     available on the market at a reasonable price. (L. Ray Patterson
     and Stanley W. Lindberg, _The Nature of Copyright: A Law of
     User's Rights_, U. Georgia Press, Athens, 1991.)

I would interpret "available on the market" to mean available on the retail market for new books at a bookseller located less than 50 miles from where I live. For a book to be available from University Microfilms does not, for me, constitute availability to a private individual, though it might constitute availability to university libraries. Available from used booksellers also is not legal availability, to my thinking. The first-sale doctrine means, or should mean, that the secondary market for books does not exist for purposes of determining availability under copyright law.

The publishers have for years been trying to intrude the copyright law inappropriately into private homes. Cases like Sony v. Universal City give us grounds to hope that they will fail; that the copyright law will never take the form of a de-facto Stamp Act requiring licensing of home computers and copiers. But we'll need to be on our guard, as the Supreme court suggested in the Sony case:

     While the law has never recognized the author's right
     to absolute control of his work, the natural tendency
     of legal rights to express themselves in absolute terms
     to the exclusion of all else is particularly pronounced
     in the constitutionally sanctioned monopolies of the
     copyright and the patent. (464 US 417, 1984)

I note that at least one member of the publishing industry appears not to support copyright extension. According to Hayward Cirker, president of Dover,

	The large corporations controlling copyright in this
	country would like additional revenue obtainable by
	limiting the public domain even more than at present,
	and, I suppose, would go so far as to make copyright
	perpetual if they possibly could. (Quoted in Gail 
	Russel Chaddock, "When is Art Free?", Christian Science
	Monitor, June 11, 1998.)

This brings us back to the origin of this thread. My first post referred to an article in the Journal of American Folklore which provides some information on the bakground of Cooper v. James, 213 F 871. My thesis was that the expiration of copyright in _The Sacred Harp_ made Cooper's and James's revisions easier for them to produce than they otherwise might have been. Dover, too, not only reprints old books, it sometimes creates new works from the old, for example by gathering musical works formerly published separately into single compilations, or by adding introductory matter. I suspect that, all other things being equal, it is usually cheaper and easier for Dover to do this than it would be if everything they published were still under copyright.

DISCLAIMER: Nothing in this post (or any other post of mine) should be taken as legal advice or as establishing a lawyer-client relationship, etc.

Tim Phillips
<hrothgar[_at_]telepath.com> Received on Thu Aug 20 1998 - 15:20:49 GMT