Jason Mazzone, “Copyfraud,” Brooklyn Law School, Legal Studies Paper No. 40, August 21, 2005. (Via Peter Suber and Klaus Graf.)
Abstract: Copyright in a work now lasts for seventy years after the death of the author. Critics contend that this period is too prolonged, it stifles creativity, and it undermines the existence of a robust public domain. Whatever the merits of this critique of copyright law, it overlooks a more pervasive and serious problem: copyfraud. Copyfraud refers to falsely claiming a copyright to a public domain work. Copyfraud is everywhere. False copyright notices appear on modern reprints of Shakespeare’s plays, Beethoven piano scores, greeting card versions of Monet’s water lilies, and even the U.S. Constitution. Archives claim blanket copyright to 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. Copyfraud also refers to interference with fair uses of copyrighted works. By leveraging the vague fair use standards contained in the Copyright Act and attendant case law, and by threatening litigation, publishers deter legitimate reproduction of copyrighted works, improperly insisting on licenses and payment of fees. Publishers wrongly contend that nobody may reproduce for any reason any portion of a copyrighted work, without the publisher’s prior approval. 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. Copyfraud also weakens legitimate intellectual property rights. Congress should amend the Copyright Act to allow private parties to bring civil causes of action for false copyright claims, and to specify as a statutory matter that copying less than five percent of a single copyrighted work is presumptively fair use. In addition, Congress should enhance more generally protection for the public domain, with the creation of a national registry listing public domain works, a symbol to designate those works, and a federal agency charged with securing and promoting the public domain. Failing a congressional response, there may also exist remedies under state law and through the efforts of private parties.