Stephan Kinsella over at the Mises Economics Blog posted a link to my new draft paper, Intellectual Property’s Great Fallacy. (Thanks!) That paper argues that the essential bit of economic wisdom at the core of copyright – that external incentives are needed to spur creative labor – is wrong.
One commenter, Eliel Melton, made an interesting point:
I note with no small amount of cynicism that Professor Johnson elected to copyright this paper: © 2011 Eric E. Johnson
As Stephan noted, I didn't cause the paper to be copyrighted, the federal law did. Copyright applies by default under the current law. That's been the law since 1989. So putting a copyright notice on a paper does not cause copyright protection to arise.
But that doesn't answer the question of why I put the copyright notice on the work. The copyright notice might seem to communicate an aggressive intent to enforce my copyright. And honestly, I think that is what many people mean to communicate when they put a copyright notice on their work. But there are some good reasons to put a copyright notice on a work even if you are something of an IP skeptic (as I am).
For one, a proper copyright notice with the year of publication will serve to establish, at some point in the future, that the work's copyright protection has expired. WIthout this, it can be difficult to determine with definiteness whether something has entered the public domain.
Also, by declaring the copyright holder, I provide follow-on users with some helpful information. If they want to ask permission to re-use the work, they know whom they need to contact. If they want to make a fair use of the work (that is, without asking permission), knowing the identity of the copyright holder allows them to gauge the likelihood of having to endure heavy-handed threats and spurious legal arguments. Sadly, in the real world, it is only rational to interpret your fair-use rights expansively or narrowly depending on the identity of the would-be plaintiff. (And, of course, your personal preferences for litigation thrill-seeking.)
I'm an intellectual property professor. If I took off on a baleful campaign of intimidation against someone making a fair use of my work, I think I would pay a dear social price at the hands of my colleagues across the academy.
There's also a question of making for an accurate record, for its own sake if nothing else. I personally find it frustrating that so many things lack a copyright notice these days, even though, as federal law requires, they are protected as copyrighted. Under the old law, the lack of a copyright notice did mean lack of copyright protection. You could rely on lack of notice to show that something was in the public domain. But now that the law's changed, all the new copyrighted stuff out there without a copyright notice serves to camouflage the material out there that is not copyright-protected because of a deficient notice. I understand that my decision to use a copyright notice will not lift the fog. Nonetheless, I don't like contributing to it. It's better, in my mind, to keep the record clear.
I found Intellectual Property and the Incentive Fallacy really stimulating, and had the same question about your copyright notice. Have you considered a Creative Commons license? See http://creativecommons.org/licenses/ For those who want to clarify copyright status but are not seeking monetary gain from a given work, a CC license may be a good choice. In fact, the rise of CC licensing and the commons it creates could be another example of your central thesis.
Posted by: Rob Tiller | June 06, 2011 at 09:04 AM