The Volokh Conspiracy - Copyright's Problems:

An article in the Oct. 19th issue of the journal Nature [subscription only, I'm afraid] pointed to the proliferation of online archives collecting together the papers of a number of well-known scientists, both historical (Einstein, Darwin, Lamarck, Newton, Lavoisier) and more recent (Pauling, Crick). One small item caught my eye; some of the archivists dealing with recent material were quoted as saying that their fears of copyright liability led them to omit incoming letters from the material that they were making publicly available; their reasoning was that copyright in those letters belongs to the authors, not the recipients, of the letters, that it would be prohibitively costly to try to obtain permissions from, say, everyone who ever wrote a letter to Francis Crick, and that without obtaining permission they were afraid of lawsuits and liability if they went ahead and put that material online.

It's a perfectly rational and reasonable decision on their part -- and a sad commentary on the current state of copyright law. Surely the overwhelming majority of authors of letters to Linus Pauling, say, or to Francis Crick, have absolutely zero interest in asserting their copyright in those letters to prevent re-publication -- indeed, the overwhelming majority of those letter-writers probably are not even aware that they own the copyright in those letters. And yet the possibility that there may be a few authors out there who would claim infringement keeps this trove of wonderful material, in its entirety, out of the hands of scholars and the public at large.

It's unfortunate and entirely perverse; this is not what copyright is supposed to be about or the purpose it is supposed to be serving. It is also entirely avoidable. In the "old days," (before 1976) U.S. copyright holders had to take certain affirmative steps -- placing a notice of copyright on documents, for example, or renewing the copyright when the initial 14- or 28-year period of protection was expiring -- to protect their works. The presence or absence of these steps signaled to the world at large whether the author had any interest in protecting his/her copyright and, in turn, made it relatively easy to determine which works could, and which works could not, be duplicated by others without the authors' permission.

Alas, we have, over the past several decades, eliminated all of those requirements, and this situation points out the cost that imposes upon us as a result. Larry Lessig (among others) has suggested bringing these requirements back -- his proposal calls for a short (5 or 10 years) initial term of copyright, after which copyright holders would be required to pay a very small fee (say $5) to renew their copyright. The vast majority of authors, having no interest whatsoever in enforcing their copyrights going forward, would allow their material to fall out of copyright; at the same time, those authors who wanted to continue to exploit their copyrighted works would be able easily to do so. The more I think about it, the better the idea looks to me.

	[David Post, November 22, 2006 at 10:13am] Trackbacks Copyright's Problems: An article in the Oct. 19th issue of the journal Nature [subscription only, I'm afraid] pointed to the proliferation of online archives collecting together the papers of a number of well-known scientists, both historical (Einstein, Darwin, Lamarck, Newton, Lavoisier) and more recent (Pauling, Crick). One small item caught my eye; some of the archivists dealing with recent material were quoted as saying that their fears of copyright liability led them to omit incoming letters from the material that they were making publicly available; their reasoning was that copyright in those letters belongs to the authors, not the recipients, of the letters, that it would be prohibitively costly to try to obtain permissions from, say, everyone who ever wrote a letter to Francis Crick, and that without obtaining permission they were afraid of lawsuits and liability if they went ahead and put that material online. It's a perfectly rational and reasonable decision on their part -- and a sad commentary on the current state of copyright law. Surely the overwhelming majority of authors of letters to Linus Pauling, say, or to Francis Crick, have absolutely zero interest in asserting their copyright in those letters to prevent re-publication -- indeed, the overwhelming majority of those letter-writers probably are not even aware that they own the copyright in those letters. And yet the possibility that there may be a few authors out there who would claim infringement keeps this trove of wonderful material, in its entirety, out of the hands of scholars and the public at large. It's unfortunate and entirely perverse; this is not what copyright is supposed to be about or the purpose it is supposed to be serving. It is also entirely avoidable. In the "old days," (before 1976) U.S. copyright holders had to take certain affirmative steps -- placing a notice of copyright on documents, for example, or renewing the copyright when the initial 14- or 28-year period of protection was expiring -- to protect their works. The presence or absence of these steps signaled to the world at large whether the author had any interest in protecting his/her copyright and, in turn, made it relatively easy to determine which works could, and which works could not, be duplicated by others without the authors' permission. Alas, we have, over the past several decades, eliminated all of those requirements, and this situation points out the cost that imposes upon us as a result. Larry Lessig (among others) has suggested bringing these requirements back -- his proposal calls for a short (5 or 10 years) initial term of copyright, after which copyright holders would be required to pay a very small fee (say $5) to renew their copyright. The vast majority of authors, having no interest whatsoever in enforcing their copyrights going forward, would allow their material to fall out of copyright; at the same time, those authors who wanted to continue to exploit their copyrighted works would be able easily to do so. The more I think about it, the better the idea looks to me.