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. 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.

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
many copyrights
in the world, and
if so, what should
be done to weed
out unnecessary
copyrights?

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 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
the law.

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-