tion-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.
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.
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
Are there too
in the world, and
if so, what should
be done to weed
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
While the main reason for aban-
doning 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. Some-
times this theory was predicated on
the labor expended by authors in cre-
ating their works, and sometimes on
the idea that each work was a unique
expression of the author’s personality
that deserved automatic respect from
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 hu-