Tell me about the title of your book: what is copyfraud?
Copyfraud is the word I use in the book to refer to false claims of copyrights in books, songs, paintings, and other works that are not actually protected by a copyright. For example, the writings of Shakespeare are not copyrighted because they are too old. But publishers routinely attach phony copyright notices to Shakespeare’s plays. Copyfraud is one of the types of abuses of intellectual property law that I examine in the book.
Why should people care about abuses of intellectual property law like copyfraud?
Intellectual property law gives private parties rights in the works they create while also protecting the public’s interests in accessing and using information. To achieve this balance, all intellectual property rights are limited. By asserting rights beyond those the law protects, creators and content providers upset the balance. In so doing, they impose economic costs on other people, interfere with the creation of new works, and undermine freedom of expression.
How did you come to write this book?
When I first began my teaching career, my scholarly writing focused on the history of the U.S. Constitution. I spent a lot of time in libraries and archives conducting research. In the course of my research, I routinely saw that somebody would be claiming a copyright or other kind of intellectual property right in the historical materials I was relying upon in my own work. For example, newspapers from the early 1800s on microfilm had copyright notices attached to every page. As a former intellectual property lawyer, I instantly knew that these claims of rights in historical materials were false and that the law did not prevent me from making use of the materials. But I also recognized that other researchers without the same legal background I had could easily believe that if a copyright notice was attached to a document then the document was indeed copyrighted—and that ignoring the copyright notice would lead to a serious penalty.
Once I had identified the problem of abuses of intellectual property law, I began seeing it everywhere: in museum gift shops selling “copyrighted” poster versions of artworks, in bookstores carrying “copyrighted” versions of The Federalist, in conversations with documentary filmmakers who had been threatened with lawsuits when they sought to use old film footage. Even my own classroom was not safe: the pocket version of the U.S. Constitution my students brought to class contained a copyright notice and a stern warning against reproducing or using the text of the Constitution without the publisher’s permission!
I wrote this book to bring to public attention the problem of overreaching intellectual property claims, to show how this problem impacts everyone, and to explain how to fix it.
Is this a book meant just for lawyers?
Not at all. Lawyers will find the book valuable but I wrote it principally for readers who do not necessarily have a legal background. Abuses of intellectual property law affect everybody. My goal in this book is therefore to reach a wide audience.
What is the public domain and how does it relate to your book?
The public domain comprises all of the creative works that the law says are not anybody’s private property but instead belong to the public as a whole. For example, a copyright is limited in duration. When the copyright on a book expires, the book therefore falls into the public domain and as a legal matter we are all free to reproduce or use the book however we like. Abuses of intellectual property law encroach upon the public domain by turning public property into property that is controlled by private individuals and corporations.
Do you have any proposals to stop abuses of intellectual property law?
Yes. My book does three things. First, it shows a wide range of abuses of intellectual property law and the effect such abuses have on the balance between private rights and public interests. Second, the book explains why content providers and creators abuse intellectual property law. Third, it sets out a series of practical remedies to address abusive practices. Some of these remedies require changing the law and I describe how to do that. The book also shows how ordinary people can, right now, stand up to the abuses of intellectual property law that occur on a daily basis.
Digital technology has led to illegal downloading of music and other kinds of infringement of intellectual property rights. Are you concerned also with infringement?
Yes. Valid intellectual property rights, as recognized by the law, should be respected. But those rights must be kept within the boundaries the law designates. Unfortunately, while digital technology has facilitated infringement, it has also encouraged new and more serious forms of overreaching by creators and content providers. If the content industries do not play by the rules, then it is hard to expect consumers to do so. My book shows how to restore the proper balance between private rights and the interests of the public in the digital age. Whether as creators or as consumers we all have a stake in that balance.
