84 Pages Posted: 19 Aug 2004 Last revised: 27 Aug 2009
Date Written: 2004
Reform(aliz)ing Copyright looks at the effect of the removal from the U.S. copyright laws of copyright formalities like registration, notice, and renewal. Beginning in 1976, the U.S. moved from a conditional copyright system that premised the existence and continuation of copyright on compliance with formalities, to an unconditional system, where copyright arises automatically when a work is fixed. Richard Epstein has aptly characterized these changes as copyright law . . . flipping over from a system that protected only rights that were claimed to one that vests all rights, whether claimed or not. 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 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. This paper argues that the disappearance of formalities was an important shift, and a harmful one. The paper recommends the re-introduction of formalities - albeit in a new form that accounts for changes in technology and complies with our international obligations under the Berne Convention, the principal international treaty governing copyright. This paper explores the important role that formalities played in our traditional copyright regime, particularly with respect to maintaining a balance between private incentives to produce creative works, and public access to those works. The paper then lays out a few possible approaches to re-introducing new-style formalities that comply with Berne.
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