Re: Some Thoughts on Copyright Term

On Nov.13, 1998, Bob Cumbow <cumbr[_at_]perkinscoie.com> wrote:
>
> The colloquy among Messrs Roettinger, Phillips and others regarding the
> debt that all authors have to pre-existing works has gone a bit far in
> its assertions of what is protectable. Mr. Phillips stated that "In a
> world of perpetual copyright rigorously enforced since the beginning of
> human language, there might be very little mythology at all, since works
> of the mind would never be considered shared." But even in a world of
> perpetual copyright, facts, ideas, and scenes a faire (standard elements
> of a particular genre) would still be available for everyone's use.
> Indeed, that is part of what is customarily understood by the term
> "mythology."

It is true that EXISTING copyright law contains exceptions for facts, ideas, and scenes a faire. But Mr. Phillips' point was that these doctrines developed (at least in part) because of the rich public domain and free speech tradition that matured during a time in which copyright did not exist or was very narrow. His 'thought experiment' leads him to the conclusion that if perpetual copyright had ALWAYS existed, from the beginning of recorded history, it would be substantially more protectionist than it is today. In light of the assault on the public domain that is occurring today, I am inclined to agree with him.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Sat Nov 14 1998 - 19:26:17 GMT