Posner Offers a Creative Vision of ‘Fair Use’

Guest blogging for Larry Lessig, Judge Posner offers an interesting idea:

Lawrence Lessig: Bill Patry, a distinguished copyright lawyer and treatise writer, and I have written an article soon to be published in the California Law Review in which we advocate an interpretation of 'fair use' that would solve the major problem that extending the copyright term creates. We argue that it should be considered fair use to copy an old work if the copyright owner hasn't taken reasonable steps to provide notice of his continued rights, as by entering his name and address in a copyright registry. Given such a rule, such registries (which have counterparts in the case of works of visual art) would spring up overnight. Then if an Eldred wanted to publish some old work, he would consult the registry or registries and if no owner was listed (which would usually be the case, because most old works have no commercial value and so their owners won't bother to try to keep them from falling into the public domain), he could publish it without a license.

I think this underestimates the extent to which conglomerates will protect their backlist, while not keeping it in print, but it's a start.

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2 Responses to Posner Offers a Creative Vision of ‘Fair Use’

  1. I have to disagree with the point that older works are less defensible from becoming public domain, however, or why even have bothered with the Sonny Bono Copyright Extension Act? That thing dropped Dickens back out of public domain, I’m pretty sure.

  2. Phill says:

    Looks like a great idea to me. There might be a few wrinkles to be ironed out technology wise.

    I think that in the short term automatic copyright is the way to go. But the protections should be limited to the original Berne treaty limits at the very most, I would be happier if there was a fixed term of 25 or 50 years.

    As far as registries go, they are easy enough to operate. The DNS model would work fine, go to any registrar you choose, a common registry does the guaranteed persistence bit, only change you would need is multiple registry back ends.

    You might also want to tweak the model, provide for long term archiving guarantee, after all there are many uses of copyright, direct revenue generation is only one, equally important is protecting the author from malicious use – sending out a modified version of a book to claim the author is racist etc.

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