Communications of the ACM
Legally speaking
Too Many Copyrights?
Credit: Alicia Kubista
Virtually all of the photographs on flickr, videos on YouTube, and postings in the blogosphere, as well as routine business memos and email messages, are original works of authorship that qualify for copyright protection automatically by operation of law, even though their authors really do not need copyright incentives to bring these works into being. Yet, copyrights in these works, like those owned by best-selling authors, will nonetheless last for 70 years after the deaths of their authors in the U.S. and EU (and 50 years post-mortem in most other countries).
Are there too many copyrights in the world, and if so, what should be done to weed out unnecessary copyrights? Some copyright scholars and practitioners who think there are too many copyrights are exploring ways of limiting the availability of copyright to works that actually need the exclusive rights that copyright law confers.1,3,4
Copyright Formalities as an Opt-In Mechanism
One obvious way to eliminate unnecessary copyrights is to require authors who care about copyright to register their claims, put copyright notices on copies of their works, and/or periodically renew copyrights after a period of years instead of granting rights that attach automatically and last far beyond the commercial life of the overwhelming majority of works.
Copyright lawyers speak of such requirements as "formalities," for they make the enjoyment or exercise of copyright depend on taking some steps to signal that copyright protection is important to their creators.4
Conditioning the availability of copyright on formalities is not exactly a new idea. For most of the past 300 years, copyright was an opt-in system. That is, copyright protection did not commence when a work was created; authors had to opt-in to copyright by registering their works with a central office or by putting copyright notices on copies of their works sold in the market. When authors failed to comply with formalities, the works were generally in the public domain, freely available for reuses without seeking any permission. This enriched culture because these works were available for educational uses, historical research, and creative reuses.
While many countries abandoned formality requirements in the late 19th and early 20th centuries, the U.S. maintained notice-on-copies and registration-for-renewal formalities until 1989. The U.S. still requires registration of copyrights as a precondition for U.S. authors to bring infringement actions, as well as for eligibility for attorney fee and statutory damage awards.
Formalities do a good job weeding out who really cares about copyrights and who doesn't. So why did the U.S. abandon formalities?
Formalities Abandoned
The U.S. had no choice but to abandon copyright formality requirements in the late 1980s because it wanted to exercise leadership on copyright policy in the international arena.
Then and now the only significant international forum for copyright policy discussions was the Berne Union. It is comprised of nations that have agreed to abide by provisions of an international treaty known as the Berne Convention for the Protection of Literary and Artistic Works. Article 5(2) of this treaty forbids member states from conditioning the enjoyment or exercise of copyrights on formalities, such as those long practiced in the U.S.
Are there too many copyrights in the world, and if so, what should be done to weed out unnecessary copyrights?
The Berne Union was first founded in the late 19th century, at a time when the U.S. had little interest in international copyrights. By the mid-1980s, however, U.S. copyright industries were the strongest and most successful in the world. They had become not only significant contributors to the gross domestic product, but also a rapidly growing exporter of U.S. products. This made them care about the copyright rules adopted in other countries.
In the late 1980s, these industries persuaded one of their own—President Ronald Reagan—that the U.S. needed to join the Berne Convention in order to exercise influence on international copyright policy. And so in 1989, under Reagan's leadership, the U.S. joined the Berne Convention and abandoned the notice-on-copies and registration requirements that had served the nation well since its founding.
Why Is Berne Hostile to Formalities?
In the late 1880s when the Berne Union was first formed, each of the 10 participating countries had its own unique formality requirements for copyright protection. One of the goals of the Berne Union was to overcome obstacles to international trade in copyrighted works such as burdens of complying with multiple formalities.
The initial solution to the problem of too many formalities was a Berne Convention rule that provided if an author had complied with formalities of his/her own national copyright law, other Berne Union countries would respect that and not insist on compliance with their formality requirements.
That was a reasonably good solution as far as it went, but it created some confusion. It was sometimes unclear, for instance, whether works of foreign authors sold in, say, France, had complied with the proper formalities in the works' country of origin. If a work was simultaneously published in two countries, was the author required to comply with two sets of formalities or only one of them? It was also difficult for a publisher to know whether a renewal formality in a work's country of origin had been satisfied.
In part because of such confusions, the Berne Convention was amended in 1908 to forbid Berne Union members from conditioning the enjoyment and exercise of copyright on compliance with formalities.
While the main reason for abandoning formalities was pragmatic, another factor contributing to the abandonment of formalities was the influence in Europe of a theory that authors had natural rights to control the exploitation of their works. Sometimes this theory was predicated on the labor expended by authors in creating their works, and sometimes on the idea that each work was a unique expression of the author's personality that deserved automatic respect from the law.
In the absence of organized constituencies in favor of preserving formalities, the natural rights theory of copyrights prevailed in much of Europe, and with it, the idea that formalities were inconsistent with the natural rights of authors in their works.
Because the Berne Convention's ban on formalities has been incorporated by reference into another major international treaty, the Agreement on Trade-Related Aspects of Intellectual Property Rights (widely known as the TRIPS Agreement), it would seem the world is now stuck with a no-formality copyright regime. But should it be so?
Has Technology Changed the Formalities Equation?
In recent decades, two major changes have contributed to a renewed interest in copyright formalities.
One is that advances in information technologies and the ubiquity of global digital networks have meant that more people than ever before are creating and disseminating literary and artistic works, many of which are mashups or remixes of existing works.
A second is that the Internet and Web have made it possible to establish scalable global registries and other information resources that would make compliance with formalities inexpensive and easy (at least if competently done), thereby overcoming the problems that led to the Berne Convention ban on formalities.
Lawrence Lessig, among others,1,3 has argued that reinstituting copyright formalities would be a very good idea. This would enable free reuses of many existing commercially fallow works that would contribute to and build on our cultural heritage. It would also help libraries and archives to preserve that part of our cultural heritage still in-copyright and to provide access to works of historical or scientific interest now unavailable because of overlong copyrights. Many innovative new services could be created to facilitate new insights and value from existing works, such as those contemplated in the Google Book Search settlement (for example, nonconsumptive research services to advance knowledge in humanities as well as scientific fields).
Copyright formalities serve a number of positive functions.4 They provide a filter through which to distinguish which works are in-copyright and which are not. They signal to prospective users that the works' authors care about copyright. They provide information about the work being protected and its owner through which a prospective user can contact the owner to obtain permission to use the work. And by enabling freer uses of works not so demarked, formalities contribute to freer flows of information and to the ongoing progress of culture.
One recent report2 has recommended that the U.S. Copyright Office should develop standards for enabling the creation of multiple interoperable copyright registries that could serve the needs of particular authorial communities, while also serving the needs of prospective users of copyrighted works by providing better information about copyright ownership and facilitating licensing. Perhaps unregistered works should receive protection against wholesale copying for commercial purposes, while registered works might qualify for a broader scope of protection and more robust remedies.
Conclusion
Copyright industry representatives frequently decry the lack of respect that the public has for copyrights. Yet, in part, the public does not respect copyright because some aspects of this law don't make much sense.
An example is the rule that every modestly original writing, drawing, or photograph that every person creates is automatically copyrighted and cannot be reused without permission for 100 years or more (depending on how long the author lives after a work is created).
If too many works are in-copyright for too long, then our culture suffers and we also lose the ability to distinguish in a meaningful way between those works that need copyright protection and those that don't.
This column has explained that formalities in copyright law serve a number of positive functions and has argued that reinstituting formalities would go a long way toward addressing the problems arising from the existence of too many copyrights that last for too many years. Obviously the new formalities must be carefully designed so they do not unfairly disadvantage authors and other owners.
Copyright industry representatives frequently decry the lack of respect that the public has for copyrights. Yet, in part, the public does not respect copyright because some aspects of this law don't make much sense.
Although the obstacles to adoption of reasonable formalities may be formidable, they are surmountable if the will can be found to overcome them and if the technology infrastructure for enabling them is built by competent computing professionals. One intellectual obstacle to reinstituting formalities is addressed in a forthcoming book,4 which explains that formality requirements are more consistent with natural rights theories than many commentators have believed. Treaties can be amended and should be when circumstances warrant the changes.
References
1. Lessig, L. The Future of Ideas: The Fate of the Commons in a Connected World. Random House, New York, 2001.
2. Samuelson, P. et al. The Copyright Principles Project: Directions for reform. Berkeley Technology Law Journal 25:0000 (2010).
3. Springman, C. Reform(aliz)ing copyright. Stanford Law Review 57:568 (2004).
4. van Gompel, S. Formalities in Copyright Law: An Analysis of their History, Rationales and Possible Future. Kluwer Law International, Alphen aan den Rijn, The Netherlands, forthcoming 2011.
The Digital Library is published by the Association for Computing Machinery. Copyright © 2011 ACM, Inc.
Comments
CACM Administrator
The following letters were published in the Letters to the Editor in the November 2011 CACM (http://cacm.acm.org/magazines/2011/11/138198).
--CACM Administrator
Though I always find Pamela Samuelson's "Legally Speaking" Viewpoints valuable and usually agree entirely, I found myself disagreeing strongly with "Too Many Copyrights?" (July 2011). Acquiring rights to one's own creative works should not require any kind of deliberate action. Creative works should be automatically one's own exclusive property unless and until one deliberately waives or assigns those rights. Consider four examples of injustice that could result:
Naive. Your child publishes something notable, perhaps a poem, short story, or painting, on a social network, blog, or school bulletin board, unaware of copyright, and makes no copyright claim. Someone else appropriates the work and makes money from it, perhaps by including it in an anthology. Your child gets nothing and has no rights to the work.
Lack of knowledge. A person in, say, rural Africa, writes and performs a world-class song or other piece of music. Due to the norms of the local culture, such a person lacks awareness of even the notion of copyright and its worldwide legal implications, making no copyright claim. Someone else appropriates the work and makes a significant amount of money from it. The original composer/performer earns nothing and has no rights. Historical examples of such appropriation by collectors and publishers include taking from composers and performers in rural North America from the 1920s to the 1960s.
Ordinary human error. A person in the developed world, aware of copyright, nevertheless by accident fails to attach a proper copyright notice to a book, paper, or other artistic work. Again, someone else appropriates the work for profit, leaving the author/creator with no rights or benefit.
Expectation of privacy. A person keeps a private diary or journal, and, intending to never let it see the light of day, does not include a copyright notice, then loses the work, after which it ends up in the hands of a publisher who then publishes it for profit. Not only does the author have no rights or benefit, the author may be greatly embarrassed when the content goes public, yet lacks recourse.
Suppose I make a statue and place it on my front lawn. Must I include a claim of physical ownership? If I don't, can you walk up and simply take it away? What if I don't include a claim of intellectual ownership? Can you simply walk up and scan it with a 3D laser scanner, then make and sell bronze copies? How are the rights of physical and intellectual ownership different?
Copyright to creative works should automatically reside with their creators, with no action required by them. The alternative creates asymmetry between those with power, money, or special knowledge and those without. Do we really intend to give the sophisticated or unscrupulous (whether individuals or corporations) rights to appropriate the creative works of others?
James Prescott
Calgary, Canada
Pamela Samuelson's Viewpoint "Too Many Copyrights?" (July 2011), along with practically all other coverage of the subject of copyright, seems to be staring at the problem without actually seeing it. That problem isn't the law but the concept that the protected rights of the creator and the invention itself are equivalent, linked commodities.
Copyright is protection granted to the originator (whether a team or an individual) of a novel idea. The confusion comes from two daisy-chain errors: first, commoditizing copyright, so it can be bought and sold; and, second, having commoditized a personal "right" so the legal system then treats it as a commodity, even though its advocates scream it penalizes the creator.
We can't have it both ways.
People object to paying copyright/patent fees that never (or trivially) trickle down to the actual originator and which is supposed to be the point of the law. Another problem is the add-on protections, as in 70-year "lives" for patents and copyrights. I say let protection die with the creator. Why let it be used to line the pockets of corporations or descendants who haven't created anything? Moreover, rewarding people for mere proximity to genius is common but unconscionable.
As for "corporate" copyrights or patents, since when did a company invent anything? If patents are not fungible assets, companies wouldn't buy them, and the actual rewards would go to the real originators whose names appear on the patent's bottom line.
The argument that companies need copyright protection to remain competitive is specious. Companies provide an environment that supports creativity, allowing creative people to create neat stuff. Their alternative would be to simply not provide such an environment at all. The straw-man argument is that if I don't do it, nobody will. The reality is that someone can always turn an advantage into a profit without the legal system paving the road for them with gold.
Turning "protection" of intellectual property into something that can be sold is absurd. The original (presumably novel) idea can certainly be sold and should be, but letting me sell you both my idea and my insulation from competition at the same time is the root of the problem. The idea is mine; how to make money with it is yours. If you can't, don't buy it.
Corporations and lawyers have no business making a profit off protection granted to another person or persons with clever ideas. The original intent of copyright or patent protection was the creators get to pick who can recreate their innovations and under what conditions. I see no evidence in the original intent of copyrights or patents that the associated legal protection should follow with the idea itself.
David Byrd
Arlington, VA
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AUTHOR'S RESPONSE
Prescott assumes my proposal would hurt authors and artists who are ignorant of or fail to comply with formalities, such as registration of copyrights, but I was not suggesting that works should automatically end up in the public domain for noncompliance with formalities. Rather, works should be protected against commercial exploitations, even when their authors have not registered their works.
It's just that some rights and remedies should be available to those who have registered, and not to those who haven't. Inventors don't get automatic protection from patent law; they have to apply for protection, so why treat authors differently? Copyright regimes around the world have had formal requirements in the past, and some still do.
Moreover, virtually every other property regime has formalities, too, such as registration of one's car; people somehow adapt to them.
Byrd raises questions about whether corporations are inventive and need intellectual property protection to remain competitive. There are surely uninventive companies, but research teams at Apple, IBM, and Microsoft, among others, have come up with significant innovations that have improved our lives. These companies rely on copyright to protect software as a means to recoup investments in developing programs, although they also rely on other intellectual property, such as trademarks and trade secrets, as well as on first-mover advantages. If other companies could just copy their programs and sell them in competition with their developers, it would be tough to recoup such investments.
I say corporate copyrights are a net positive for society, as long as the scope of protection is not too extensive.
Pamela Samuelson
Berkeley, CA
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