Economic Analysis of Copyright Notice: Tracing and Scope in the Digital Age

56 Pages Posted: 6 Jan 2016

See all articles by Peter S. Menell

Peter S. Menell

University of California, Berkeley - School of Law

Date Written: January 4, 2016

Abstract

Notice of preexisting rights plays a critical role in resource planning. This article focuses on the history, role, institutions, costs, and efficacy of notice within the domain of expressive creativity. It distinguishes between two sets of copyright notice challenges: tracing of copyright ownership and assessing the scope of copyright protection. Tracing issues – linking copyrighted works to subsistence information about the works and contact information about their owners – are largely solvable through implementation of existing and developing technological means (such digital content recognition), international standardization, and reform of obsolete legal rules, most notably Berne Convention limits on formalities. The inherent uncertainty surrounding copyright scope, however, stands in the way of copyright notice nirvana – a transparent database of fully specified copyright resources and reliable tools for determining liability exposure ex ante. Unlike tracing of subsistence and ownership information, current or foreseeable technology alone cannot solve the problem of forewarning the public of the precise boundaries of copyright interests. Nonetheless, other notice-failure based adjustments to the copyright system can ameliorate scope clarity concerns. Such reforms would enhance copyright notice, ensure copyright protection, and promote cumulative creativity.

Keywords: copyright, notice, formalities, economic analysis, Berne Convention

Suggested Citation

Menell, Peter S., Economic Analysis of Copyright Notice: Tracing and Scope in the Digital Age (January 4, 2016). Boston University Law Review, Vol. 96, 2016 Forthcoming; UC Berkeley Public Law Research Paper No. 2710904. Available at SSRN: https://ssrn.com/abstract=2710904

Peter S. Menell (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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