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.
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-
the lack of respect
that the public
has for copyrights.
Yet, in part, the public
does not respect
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.
1. lessig, l. The Future of Ideas: The Fate of the
Commons in a Connected World. random house, new
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 ( firstname.lastname@example.org) is the
richard M. sherman Distinguished Professor of law and
Information at the university of california, Berkeley.
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