manities 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 exis-

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.

tence 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.

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.

 

Pamela Samuelson ( [e-mail]) is the richard M. sherman Distinguished Professor of law and Information at the university of california, Berkeley.

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