No Answer on Copyright Misuse
The Washington Post reports that a copyright suit involving the James Joyce estate was settled last week. The estate had been sued by an academic scholar who wanted to use portions of unpublished documents from the estate in a book about Joyce’s work. The estate had refused to agree to the use. The writer sued the estate, asserting that their refusal to allow the use of the material in a scholarly work was a misuse of their copyright. Essentially, her argument was that sometimes a copyright holder cannot withhold permission to use the work.
This is a new legal theory, but not entirely without precedent. The compulsory licensing provisions for music that are currently part of the copyright statute do this very thing. Music copyright holders can prevent use of the music as long as it has not been recorded and publicly released, but once that happens, anyone can get a compulsory license to re-record the music.
The compulsory licenses do require payment to the copyright holders, but it takes away their right to control the use of the work. The Joyce case would have made a similar argument for certain written works. Frankly, I don’t see a difference in the two. If music copyright holders are required to allow the use of their music, written copyright holders should be as well. Is there a difference in the nature of the work or the market? You tell me.
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