Re: DejaNews and Copyright


A. Lester Buck III (buck@Compact.COM)
Wed, 20 Aug 1997 15:35:04 -0500

This thread and this post in particular bring up many
interesting issues of copyright. The best summary
of copyright I have found is the Copyright FAQ at

>I get the impression (and I'm sure someone will correct me if I'm
>wrong) that deep down, all a copyright notice really applies to is
>the particular copy of the material it's attached to. Dejanews
>certainly isn't trying to claim copyright for your work; they're
>just asserting their rights over the copy they've made in their
>archive. (Whether they have any rights over this compilation,
>and whether copyright is an appropriate way to protect them,
>is another question entirely.)

>In particular (and this is probably obvious), a copyright notice
>is *not* retroactive. If someone (call them party A) has slapped
>a copyright notice on a work, and if you hold a legitimately-
>obtained version of that work without a copyright notice (or with
>a different copyright notice), then party A's copyright notice
>does not apply to you or to the copy you hold. In particular, if
>the copy you hold was created by party B, then party B probably
>holds copyright, if only implicitly under the Berne Convention.
>(Of course, this is especially true if *you* are party B.)

You mention the Berne Convention, which invests a copyright in
all authors at the instant of publication, whether they have
any copyright notice or not. When you mention a party holding
copyright "if only implicitly under the Berne Convention", this
suggests that such an implicit copyright is somehow "less" than
other copyrights. That is not my understanding. Authors are
allowed to move against copyright infringers in exactly the same
way as authors who have plastered their work with copyright notices
(and made statutory deposits with the government). I understand
that even before the Berne Convention, copyright holders who
had mistakenly published some copies without proper copyright
notices were allowed to perform due diligence to find such copies
and retroactively add their copyright notice. They had something
like six months to perform this corrective process without losing
their rights entirely.

I am unsure of the value of a copyright notice today, under
the Berne Convention. There is also the registration process,
where the author deposits a copy with the Library of Congress
or copyright office or wherever (I forget) and pays a small fee.
Following the advice of my IP attorney, I made a copyright deposit
of some source code I had developed independently as I started a
new contract to develop similar code. (I used a rule where 50%
of the code can be obscured, so one actually deposits a photocopy
taken through a diagonal zebra striped mask that makes the actual
document useless for programming purposes.)

Before the Berne Convention, the registration process was important
for authors who wanted heavy damages, since unregistered works had
limitations on their damage awards. Under the Berne Convention,
I believe authors of unregistered works without copyright notice
can still claim their rights to suppress publication, but may
not be able to obtain much in damages.

If your Party B above has created their own independent copy
(without looking at Party A's work), then Party B has an immediate
copyright at publication, completely independent of how similar
the two works may be. Of course, Party A may force Party B to
prove that Party B had not exposure to Party A's work. This is
a fact question for the jury.

Of course, I am not a lawyer so this is hardly a legal opinion...

>Finally, suppose I want to use some of John Tenniel's classic
>illustrations for Charles Dodgson's works (Alice's Adventures in
>Wonderland and Through the Looking Glass, of course). I *know*
>the original copyrights on those have long since lapsed; they're
>unquestionably in the public domain. But there are many copies
>about; which ones shall I use to make my scans? As in the Pooh
>case, many of the copies seem to have copyright notices affixed
>by jealous latter-day republishers. (In many cases, the latter-
>day republisher is probably again Disney.) Those republishers
>will complain (and will probably have a case against me) if I copy
>their copies of what they don't deny are public domain images.
>They would say I have to negotiate with them before copying their
>copies, and if I don't want to do that, then it's my problem to
>try to find a high-quality copyright-lapsed copy in a library or
>something, or to negotiate with a museum somewhere for permission
>to make a copy from one of the originals.

>In practice, it seems that popular and desirable works can be
>controlled (and utilized for profit) essentially in perpetuity,
>regardless of what the law says about how long copyrights last or
>what it means to be "public domain." Consider the Mona Lisa --
>I bet that any book you find a copy of it in (and from which you
>might be thinking of making a copy) will have a copyright notice,
>and if you want to make a copy of the original, you're going to
>have some serious negotiating to do with the folks at the Louvre.

This is a very interesting point. I think you are pointing
out that many of the most interesting published works in
history have their access controlled simply because, of
the bazillion things that have been published in history,
these are the objects that are still of commercial interest.
You would probably have no trouble making copies of the 35th
best selling book for the year 1817, for example. Access to
"interesting objects", either curent or historical, has usualy
required some payment. If you had free access to the Mona Lisa,
you could make photographs of the painting to your hearts content.
But the owners of that particular (singular) copy control access
(their right), so there are in fact no free copies in existence.
You might be able to find public domain copies of the Mona Lisa
in old books whose copyright has expired. I think you would be
on extremely safe ground publishing a picture of the Mona Lisa,
though, since with so many virtually identical copies running
around, how could any particular publisher decide whose copyright
a given image was violating?

Best regards,


A. Lester Buck