Donna asked me to summarize Chris Sprigman‘s Stanford Law Review article, Reform(aliz)ing Copyright. I’ve had the pleasure of working with Chris this summer at the Center for Internet and Society and assisting him with this article and with a related lawsuit, Kahle v. Ashcroft, which seeks to remedy the negative consequences for First Amendment freedoms caused by the move from conditional to unconditional copyright. Here’s my summary:
For the first two hundred years of American copyright, creators who wished to take advantage of the copyright system had to do more than just creating. They had to give notice to the reader that copyright protection was claimed, register their claim with the government, deposit a copy with the Library of Congress, and then renew their copyright after a certain number of years. Together, these requirements were known as copyright formalities.
Between 1976 and 1989, these formalities were eliminated. Now, from the moment a work is created, it is protected by copyright for seventy years after the creator dies, with no further action required of the creator. When the formalities were eliminated, Sprigman notes that we moved from a “conditional” system of property rights to an “unconditional” system, in which rights vest in the author regardless of whether the author values them or intends to claim copyright in the creation.
At the time the formalities were eliminated, lawmakers and copyright holders emphasized the negative consequences of the conditional copyright system. Because some of the formalities required some amount of recordkeeping — in order, for instance, to renew the copyright within the required period — copyright holders sometimes lost their rights by accident. But some copyright holders, Sprigman shows, failed to comply with formalities quite deliberately, to prevent copyright from attaching to their works. The twentieth-century composer Charles Ives, for example, was ideologically opposed to copyright in music, and showed his opposition by deliberately omitting copyright notice from his published scores. More importantly, when a work no longer had any commercial value, the copyright holder would make a rational choice not to renew the copyright, since there was a small cost associated with renewal and renewal-related recordkeeping. In this way, Sprigman argues, formalities acted as market signals, causing works to fall into the public domain automatically when their creators no longer saw any value in them.
In other words, formalities weren’t just annoying ministerial requirements, traps for the unwary included for the sake of tradition. They were smart economics. They caused works to exit copyright’s system of exclusive rights when the economic value of that exclusivity was exhausted.
So, Sprigman asks, what can we do now? The Berne Convention, to which the United States acceded soon after its elimination of formalities, prohibits formalities as a condition for copyright protection. We can’t just reinstate formalities going forward. Sprigman sees renewal as the most obviously economically important formality; exclusive rights that are economically worthless to the rights-holder but potentially valuable to other parties are a dead-weight loss to society. Sprigman proposes a system of “new-style formalities” — voluntary notice, registration, deposit, and renewal. If a copyright holder decided to opt out of the system of voluntary formalities, their work would be subject to a “default license”. The license fee, payable from the user to the copyright holder, would be set such that the full cost of compliance and the full cost of noncompliance are roughly equal. Sprigman discusses the consequences of such a system for United States treaty compliance at length in the paper.
Along with a forthcoming paper by Richard Posner and William Patry, Reform(aliz)ing Copyright lays the foundation for a new battle in the copyfight, focusing not on the optimal length of the copyright term but on the optimal set of conditions a copyright system should demand of parties claiming exclsuive rights.
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