In a recent speech, Judge Kozinski discussed a proposal to reform copyright law by changing the remedy available for violating the copyright owner’s exclusive right to make a derivative work. Instead of obtaining an injunction, the copyright owner would be able to either sue for damages (to the copyright) or for disgorgement of a royalty (percentage of the profits). Via Copyfight, blogger mellow-drama summarizes: Scrapping Fair Use
Kozinski was pretty adamant that he thinks most copyright holders are “control freaks” who think of their creations as their babies; and he thinks we should remove copyright from the realm of the emotional and put it into a strictly business sense %u2013 in other words, the interests of the advancement of science, art, and culture is more important than an individual’s right to create something and retain control over that creation. He did point out that if you created something and didn’t release it to the public, it could remain yours forever. But once people put their creations into the public domain and make money from them, then they are subject to be built upon by anyone who comes along. He thinks that others may often be able to exploit the creator’s work better than the creator, who is too close to the creation to necessarily make the best use of it.
This approach would make the copyright a completely economic interest and deny copyright owners to prevent the publication of unlicensed derivative works for artistic or aesthetic reasons. This approach would move American copyright law away from having much respect for an author’s moral rights.
If Congress adopts this as a law, I wonder if owners of valuable copyrights (e.g. Harry Potter, Mickey Mouse) would attempt to use trademark dilution as a way to obtain an injunction against unlicensed derivative works and how that will affect the balance of interests in fair use.
