RE: [dvd-discuss] Eldred Amicus

["Michael A Rolenz" <Michael.A.Rolenz(at)aero.org>]

This is one area where I think that some of the trade secret law may be 
far more applicable than in cases such as Bunner. AN unpublished 
manuscript IS a trade secret of sorts.  A publisher who copies and 
publishes a work that they have been shown (and there is an implied 
contract that they will evaluate for publication ONLY) has been shown a 
trade secret and hasn't protected it. Furthermore, they have taken it for 
their own and committed a fraud (presumably they won';t use the author's 
name).




Joshua Stratton <cpt@gryphon.auspice.net>
Sent by: owner-dvd-discuss@eon.law.harvard.edu
05/29/2002 10:31 AM
Please respond to dvd-discuss

 
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        Subject:        RE: [dvd-discuss] Eldred Amicus


The natural counter argument, however, is that authors who are in the
process of writing a manuscript, or who are shopping it around to
different publishers, may have their work published without their
permission if it isn't copyrighted from the instant the pen touches the
paper.

To prevent this, I think we will have to resurrect the common law
copyright that vanished in 1976, or suggest a better statutory solution
than presently exists. Essentially, unpublished works should receive
protection only if they are still in the process of being created, or will
be immenently published. To avoid fraud on the part of the copyright
claimant however -- who might be tempted to have a work that will always
be done tomorrow -- the claim would have to be judged to be reasonable by
a court. I don't think that the running of the copyright term from the
beginning of creation is satisfactory, however, as this would
disincentivize works that take considerable effort to create but which
still are encouraged by copyright generally, and I don't think we want to
lose those. (thinking here of Ralph Ellison's unfinished 2d novel)

The MS that's left in a desk drawer for fifty years, however, certainly
should not qualify for any sort of protection.



On Wed, 29 May 2002, Dean Sanchez wrote:

> 
> 
> > -----Original Message-----
> > From: microlenz@earthlink.net [mailto:microlenz@earthlink.net]
> > Sent: Tuesday, May 28, 2002 10:18 PM
> > To: dvd-discuss@eon.law.harvard.edu
> > Subject: Re: [dvd-discuss] Eldred Amicus
> > 
> > 
> >> On 28 May 2002 at 18:42, Scott A Crosby wrote:
> >> 
> >> 
> ...
> > 
> > > BUT, I might be willing to go for life+10 years for 
> > unpublished works,
> > > because they tend to not be commercially signifigant, and there are
> > > private works that shouldn't become public till 10 years after the
> > > authors death.
> > 
> > That's one of the few things about the copyright reforms and WIPO 
> > recommendations that I do think is reasonable. THe copyright 
> > system, pre -1976 
> > was well thought out for administration except in this 
> > matter. 10 yrs from 
> > death too much of a burden to edit/publish. And, I don't see 
> > it as onerous to 
> > grant copyright from death plus 10 yrs for a fixed duration 
> > as a new work.
> > 
> > 
> 
> I have major issues regarding allowing copyright to be granted on any 
unpublished work. A manuscript moldering in the drawer does not benefit 
the public. If an author wants copyright protection, he must be willing to 
publish (i.e. make it available to the public).  Until fairly recently, 
this was part of the social compact.  Having to register is and was the 
ideal situation.  In this case, if the author is dead, there probably is a 
need to create an incentive for the estate to publish.  However, the 
incentive should be significantly less than one would give to a living 
author to create an incentive to continue producing new works.
> 
> It is ironic that one of the reasons Jefferson finally agree on the need 
for copyright was the concern that the cost of creating copies was so 
expensive (in terms of equipment and material).  There was the fear that 
people would be unwilling to expend the money for the equipment and that 
very little would be published in such a way as to allow anyone except for 
the well-to-do access to the material.
> 
> Now the argument is that it is so easy to copy, we must extend the 
length of time the work receives protection.  At least one goal as 
espoused by the founders for needing copyright has been reached.  This is 
not to say that the need for copyright has vanished, just that the extreme 
lengths and controls have gone from the extreme to the preposterous with 
little to no valid justification.
> 
> Dean
>