Unpublished Materials, New Technologies, and Copyright: Facilitating Scholarly Use

Presented at the Interdisciplinary Conference On The Impact Of Technological Change On The Creation, Dissemination, And Protections Of Intellectual Property, The Ohio State University College of Law, Columbus, OH. March 8-10, 2001.The paper is divided into three parts. The first part explores why, at least with regard to the use of unpublished materials, current interpretations of copyright law have become an impediment to creative endeavors rather than an encouragement to them. Two factors are at work. The first factor is that copyright law imposes on unpublished materials a set of rules and viewpoints meant to govern published material. The second factor that has made the use of unpublished material more problematic is the rise of the Internet and the ease with which people can uncover potential infringing acts. Technology has not changed the law, but it has affected how people interpret the law ? with potentially disastrous results as far as unpublished material is concerned. The second part of the paper considers one possible solution advanced by the Copyright Office to address the problem of what they call ?orphan works? ? works whose copyright owner cannot be located. The last part of the paper considers what might constitute reasonable investigation of the copyright ownership of unpublished works. It may be that the standard for reasonable investigation would be enough to establish a fair use defense of the material, obviating the need for compulsory payments