November 08, 2004

EDRI Proposal

I have repeatedly proposed on this blog that copyright holders should not be able to ask for damages if they themselves are not selling the work in question (no sale doctrine).

Now "European Digital Rights" (EDRI) recommends something similar. In their recent response to the EU Commission consultation on copyright they write, among other interesting proposals:

"13. EDRI therefore calls for a radical solution - a `use-it-or-lose-it clause' to be introduced into copyright law. If a work that has been once made commercially available, is not commercially available for three years, then it should be open to the work's original creator to resume the copyright from its current owner. If a work is not commercially available for five years, then all copyrights should expire, making it open to anyone to publish the work."

The first part of this proposal is already current German law. Article 41 of the German copyright code gives the author of a work the right to revoke an exclusive license granted to a publisher if he doesn't publish the work. And that even in the case that there has been no previous publishing yet, while the EDRI proposal would only help the author if the work has already "been once made commercially available".

The second part (expiring of all copyrights after five years of not publishing) is going in the same direction as my proposal, and Lessig's or Posner's ideas.

However, I think it should be enough to propose limits on the legal effects of infringing economically worthless copyrights. No awarding of non-existent damages, and no penal law sanctions for violating in that case.

One reason is that copyright is not just an exclusive right to copy. There are other rights, for example that of being named as the author. If the radical EDRI proposal is adapted, anyone could go ahead and republish other people's economically worthless works under a different name.

The other reason is that this kind of radical proposal has less chances to be actually adopted than one that achieves the same result with more mainstream changes.

Posted by Karl-Friedrich Lenz at November 8, 2004 10:48 AM | TrackBack