Copyright and Time: A Proposal

Copyright and Time: A Proposal

Liu, Joseph P., "Copyright and Time: A Proposal" . Michigan Law Review, Vol. 101, No. 2, November 2002

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    This Article argues that courts should adjust the scope of copyright protection by considering time as a factor in fair use analysis. More specifically, the longer it has been since a copyrighted work was published, the greater the scope of fair use should be. Up to now, most of the debate over the role of time in copyright law has focused on the controversial issue of copyright duration and term extension. By focusing so narrowly on the end of the copyright term, however, this debate has neglected the more significant issue of how time should affect the scope of copyright protection during the copyright term. This Article argues that exceptionally strong justifications exist for considering time expressly in setting the scope of copyright protection, and that fair use provides an ideal vehicle for such consideration, both doctrinally and theoretically. By considering time in fair use analysis, courts can adjust the scope of copyright protection to respond more dynamically to the changes that occur in authorial incentives, public access, and other copyright interests over the length of the copyright term. Consideration of time also provides a legitimate way for courts to inject public-regarding values into the process of setting the scope of copyright protection.

    Keywords: Copyright, Duration, Eldred, Intellectual Property, Sonny Bono, Term Extension, Fair Use

Facts on copyright

  • A common and simple practice to obtain evidence in favour of authorship is to place the copyright material in a envelope or package together with a document signed by several people stating that they have examined the work prior to it being sealed and that in their opinion it is original. Once this is done the package is mailed to the owner by recorded delivery, which helps to establish when the work was created, who the originator of the work is and that there are signatory validators prepared to state that it is original.
  • Copyright subsists for a variety of lengths in different jurisdictions, with different categories of works and the length it subsists for also depends on whether a work is published or unpublished. In most of the world the default length of copyright for many works is either life of the author plus 50 years, or plus 70 years. Copyright in general always expires at the end of the year concerned, rather than on the exact date of the death of the author.
  • Many countries recognize certain moral rights of the author of a copyrighted work, following adoption of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (which in turn requires, inter alia, the implementation of the relevant provisions in the Berne Convention). Two key moral rights are the right not to have the work altered or destroyed without consent, and the right to be attributed as the author of the work. The Monty Python comedy troupe famously managed to rely on moral rights in 1975 in legal proceedings against American TV network ABC for airing re-edited versions of Monty Python's Flying Circus.

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