In this day and age, non-participating pasties have the right to sue for copyright damages for material they no longer sell but have copyright over.
Arguably the preservation of history and culture should trump copyright law if the copyright holder does not sell or make the material available through other means.
One such example is Retro Game archives, or Online Book Archives: Often companies that have made the games or books stop selling or printing them after a few decades, thus making them non-participants to future sales, as the sales are only of already sold copies.
In such a case the public should have the right to – if the rights holder is a non-participant – make the work available (for free, and non-commercially) as a way to preserve culture and history, barring rights holders from suing or seeking other damages from the individual or organisation that does the archiving of said material.
This is what is one of the things needed to create a modern, forward thinking copyright regime.
Limit 1: It does not make the intellectual property copyright free, the rights to the characters, the work, the Intellectual Property still resided with the copyright holder.
Limit 2: Right holders that can prove that they are not non-participants – with regards to a specific work – should have the right to ask the archive to remove the material. If the material is not removed after three tries, with two months intervals between notices, legal action can be used.
Limit 3: Licensing out the right to some intellectual property does not constitute being a participating party. It only applies to the work at hand, and not subsequent works that uses the same intellectual property with regards to the work.
Limit 4: This right should only be available after a set time from last print or last sale (5 years?). Works that are made available – without the right holders approval – before that should be considered infringant.
Gustav Hartvigsson
For Europe, Always.
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