“Copyfraud” Steals From the Public Domain

Here’s something I didn’t know:

Copyfraud is everywhere. False copyright notices appear on modern reprints of Shakespeare’s plays, Beethoven’s piano scores, greeting card versions of Monet’s Water Lilies, and even the U.S. Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the owner’s permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.

Copyright law itself creates strong incentives for copyfraud. The Copyright Act provides for no civil penalty for falsely claiming ownership of public domain materials. There is also no remedy under the Act for individuals who wrongly refrain from legal copying or who make payment for permission to copy something they are in fact entitled to use for free. While falsely claiming copyright is technically a criminal offense under the Act, prosecutions are extremely rare. These circumstances have produced fraud on an untold scale, with millions of works in the public domain deemed copyrighted, and countless dollars paid out every year in licensing fees to make copies that could be made for free. Copyfraud stifles valid forms of reproduction and undermines free speech.

This is from a paper by Assistant Professor Jason Mazzone of the Brooklyn Law School, which was linked by the popular site Boing Boing. The full paper can be downloaded from here.

In the paper, he cites a warning notice placed on an edition of the U.S. Constitution that many law students use: “No part of this may be reproduced or transmitted in any form or by any means…without permission from the publisher.”  The Constitution!

Corporate websites include blanket copyright notices even when they feature the U.S. flag, list stock reports, contain a calendar or rely on other materials squarely in the public domain. Following several high-profile lawsuits, many universities now pay licensing fees for virtually everything they reproduce and distribute to their students, whether warranted by copyright law or not.

Copyright law suffers from a basic defect. The law’s strong protection for copyrights are not balanced by explicit protections for the public domain.

Also prone to fraudulently asserted copyrights, according to Prof. Mazzone:  Reproductions of works by artists like Monet or Van Gogh, sheet music for classical music, church songs and patriotic anthems, and government documents like the Warren Commission Report on JFK’s assassination and the 9/11 Commission Report.

Mazzone points out that the Patent act prohibits false patent claims marking a product. Merely making such a mark is viewed by the law as sufficient to prove intent to deceive the public.  Not so in copyright law.  Those who pay fees for fraudulently copyrighted material must sue to recoup their losses.   Thus, one option Mazzone considers is putting copyright law on the same footing as patents.

Because Congress has continually expanded the duration and power of copyrights, Mazzone argues, it has a responsibility to protect what remains in the public domain.

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One Comment on ““Copyfraud” Steals From the Public Domain”

  1. Alan Sage Says:

    This is so true copyrighr expires 99 year after the death of the original copyright owner


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