fact subject to copyright. Second, distributors of audiovisual materials are
misrepresenting “public performance rights,” claiming that special fees must
be paid to acquire these rights for classroom use, an outcome the law is
expressly designed to prevent.
Copyfraud
In his exhaustive law review article on the topic,3 Jason Mazzone describes
a wide variety of practices that constitute “copyfraud”—falsely claiming
copyright in a public domain work. The most common species of copyfraud is
the blanket copyright notice attached to a printing of a public domain work. A
typical notice takes the form “© Example
Press 1986,” and is often followed by a
warning along these lines: “No part of this
publication may be reproduced without
express permission of the publisher.”
While these notices are often included as
a matter of routine in the front matter of
published works, they are plainly false
where the underlying work is in the public domain. Such misleading notices
almost certainly deter perfectly legal uses of public domain works. It is
particularly troubling that some of the publishers using these misleading
notices are academic and university presses.
A legal technicality may explain (but not excuse) at least some of these
misleading notices. Until recently, it was necessary to include a copyright
notice on all published works in order to retain copyright protection.4
Works
published without proper notice could rise (or fall, from the publisher’s point
of view) immediately into the public domain. Because many reprints of classic
works are accompanied by critical introductions, new cover art, editorial notes,
and the like, which are not in the public domain, notices may have been
necessary to preserve copyright in those new materials. A blanket notice in
these contexts is deeply misleading, however, as it suggests ownership of the
entire work. It is better practice to specify the portion of the work covered
by copyright, e.g., “Introduction © 1986 Example Press. Translation © 1975
Edward X. Ample.” Unfortunately, there is little legal incentive for a publisher
to specify the parts of a work to which the notice applies, and many still use
blanket notices.
RLI 276
21
Copyfraud and Classroom Performance Rights: Two Common Bogus Copyright Claims
(
C O N T I N U E D
)
SEPTEMBER 2011 RESEARCH LIBRARY ISSUES: A QUARTERLY REPORT FROM ARL, CNI, AND SPARC
The limited duration of copyright ensures that
once authors have had a reasonable time (and
then some) to exploit their creations, works
will rise into the public domain and be set free
to circulate without copyright restrictions.
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