Marvin Ammori Calls for False Marking Provision in Copyright Law
The Copyright Act should be amended to include a false marking provision modeled on section 292 of the Patent Act.
A false marking provision in copyright law would incentivize publishers to provide accurate information about the status of a work. Public domain works marked as copyrighted would result in liability. A new edition of a public domain work that adds copyrighted material (an introduction, for example, or annotations) would be required to carry a notice specifying what is copyrighted and what is not.
As with the Patent Act, anybody would be able to bring a claim against the publisher who falsely marks a work as copyrighted. The person bringing the lawsuit would retain a portion of the remedy.
Section 292 of the Patent Act furthers the utilitarian purposes of our patent system. A copyright false marking law will likewise promote the public interests of copyright.
Would such a provision improperly burden the profitability of publishers who add copyrighted material to public domain works?