Reform(aliz)ing copyright.

• Author: Sprigman, Christopher

INTRODUCTION I. THE TRADITIONAL CONTOURS OF "CONDITIONAL" COPYRIGHT A. Formalities in the Early Copyright Statutes B. From Conditional to Unconditional Copyright 1. Voluntary registration and notice 2. Renewal II. FORMALITIES AND THE "TRADITIONAL CONTOURS" OF CONDITIONAL COPYRIGHT A. Recording Ownership 1. "Signaling" 2. Maximizing private incentives B. Formalities as a Copyright "Filter" 1. Registration and notice 2. Renewal 3. Effect of the renewal formality on the real term of copyright 4. The costs of copyright C. Formalities and "Utilitarian" Copyright 1. The Intellectual Property Clause D. Copyright's Increasingly Uneasy Fit with the Constitution 1. Term extension without renewal filter 2. Formalities as a buffer between copyright and the First Amendment E. Unconditional Copyright and U.S. Accession to the Berne Convention 1. The Berne Convention 2. Berne's rule against formalities 3. Berne's "practical hostility" to formalities III. REFORMALIZING COPYRIGHT A. Defining "Interoperable" Formalities in the Berne Convention 1. The reciprocity, principle 2. The reciprocity, principle and neighboring rights agreements 3. The reciprocity, principle in practice B. Defining "New-Style" Berne-Compliant Formalities 1. Reintroducing old-style formalities for U.S. authors 2. Withdrawal from Berne and reliance on the Universal Copyright Convention 3. Indefinitely renewable copyright 4. The Public Domain Enhancement Act 5. New-style formalities CONCLUSION INTRODUCTION

The recent debate between those who oppose the current trend of expanding the duration and breadth of copyright control over creative works and those who welcome it has focused on large and abstract questions like the optimal duration of copyright, (1) whether extension of subsisting copyrights is constitutional, (2) the degree to which technology has either facilitated or inhibited control of copyrighted content, (3) and the effect that such control has on free speech, the public domain, and future creativity. (4) The debate has produced an insightful literature and a few creative (but thus far unsuccessful) lawsuits. (5) It has not, however, substantially altered the direction of recent developments in the law, which continues to move in the direction of increased control.

This Article presumes that the trend toward greater control will continue. I will argue, however, that a few relatively modest and realistically implementable changes to the copyright laws could help address some of the legitimate concerns of the copyright critics while preserving the basic structure of the law that copyright proponents argue has served us well. Curiously, it is a few relatively small changes to copyright procedure, and not to the substantive rights granted by copyright, that may allow the law to reach this desirable end.

Copyright formalities. For most of our history, U.S. copyright law has included a system of procedural mechanisms, referred to collectively as "copyright formalities," that helped to maintain copyright's traditional balance between providing private incentives to authors and preserving a robust stock of public domain works from which future creators could draw. From the first copyright statute in 1790, Congress required that authors register their copyrights, give notice (by marking published copies with an indication of copyright status such as the "c" symbol, as well as other information about copyright ownership), and (perhaps most importantly) renew their rights after a relatively short initial term by reregistering their copyright. Failure to comply with these requirements either terminated the copyright (in the case of nonrenewal) or prevented it from arising in the first place.

Taken together, these formalities created data about the existence and duration of copyright for the work in question, and about who owned the copyright. Formalities also facilitated licensing by lowering the cost of identifying rightsholders, moved works for which copyright was not desired into the public domain, and encouraged the use of public domain works by lowering the cost of confirming that a work was available for use.

Deform(aliz)ing copyright. However, in a process that began in earnest with the Copyright Act of 1976 (6) and culminated in successor legislation like the Berne Convention Implementation Act, (7) the Copyright Renewal Act, (8) and the Copyright Term Extension Act, (9) Congress pared back, and in some instances entirely discarded, copyright formalities. Under current law, copyright arises the moment an original piece of expression is fixed in a "tangible medium of expression.' (10) Registration and notice, though encouraged, (11) are not required as conditions of protection. Renewal is gone altogether.

Beginning with the 1976 Act, then, the United States moved from a "conditional" copyright system that premised the existence and continuation of copyright on compliance with formalities to an "unconditional" system in which a reduced set of voluntary formalities plays only a minor role. Richard Epstein has aptly characterized these changes as "copyright law ... flipped over from a system that protected only rights that were claimed to one that vests all rights, whether claimed or not." (12) That is a fundamental shift in any property rights regime, and one that, in the copyright context, represented a break with almost two centuries of practice.

The advent of unconditional copyright has nonetheless generated little comment in the academic literature--perhaps because the very term "formalities" signals that the former requirements were trifling, ministerial, or more bothersome than helpful. To the extent the issue has been discussed at all, commentators have generally approved the trend (13) as a necessary predicate to U.S. accession to the Berne Convention for the Protection of Literary and Artistic Works. (14) The Berne Convention is the most significant international copyright treaty, and it includes a provision prohibiting signatories from imposing copyright formalities as a condition to the protection of works of nationals of other member states. (15)

Reformalizing copyright. This Article lays out a scheme for "reformalizing" copyright--i.e., for moving copyright back to a conditional regime--but in a way that accounts for developments in technology and that allows the United States to remain in compliance with its undertakings in the Berne Convention and the subsequent Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), (16) which incorporates by reference Berne's standards, including the proscription of formalities. (17)

Part I of this Article describes the conditional copyright regime that characterized U.S. law for almost two centuries and explores the role that formalities played in maintaining copyright's traditional balance.

Part II sets out the consequences of our post-1976 move away from conditional copyright and toward an unconditional system. In this Part, I argue that formalities served an important role in filtering out of copyright works for which exclusive rights are not expected to provide a benefit to authors, thereby focusing copyright protection on works for which exclusive rights could be expected to add to the inducement to creative effort that is the primary justification for copyright.

The removal of formalities has had a profound effect on the nature and reach of U.S. copyright law. In fact, although the lengthening of the copyright term has attracted significant attention, and the removal of formalities almost none, the latter arguably represents the more significant change in terms of expanding the domain of copyright beyond works for which application of the law is useful in inducing investment in creative works, and, consequently, reducing copyright's social utility.

It nonetheless may be true that the elimination of mandatory formalities, at least the particular forms that the law imposed before 1976, made sense given the circumstances (principally the desire to gain admission to the Berne Convention) that faced Congress at the time. Very quickly, however, those circumstances have changed. The growth of the Internet, and, more broadly, of digital technologies, has opened up new possibilities for public access to and use of creative works that did not exist when Congress was removing formalities from copyright law. Before the digital age, the cost of copying and distribution had more effect on the ability of most people to access, use, and transform creative works than did the copyright laws. But now digital distribution is cheap and digital copying is essentially free. Today copyright law has emerged as the principal barrier to the creative reuse of a large amount of material that under the former conditional copyright regime would not have been subject to copyright in the first place. The majority of creative works have little or no commercial value, and the value of many initially successful works is quickly exhausted. For works that are not producing revenues, continued copyright protection serves no economic interest of the author. But in an unconditional copyright system, commercially "dead" works are nonetheless locked up. They cannot be used as building blocks for (potentially valuable) new works without permission, and the cost of obtaining permission will often prevent use. In such instances copyright is radically unbalanced: its potential benefits are depleted, and it therefore imposes only social costs.

Part III of the Article explores how reformalizing copyright might restore the balance between incentives and access that the old conditional system maintained. The Article does not, however, argue for unilateral readoption of old-style formalities by the United States. Such a move would fail because, among other problems, it would cause the United States to fall out of compliance with Berne and TRIPs, thereby removing the United States from the international...