[Upd-discuss] [Abstract: Reform(aliz)ing Copyright

[Michael Hart]

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Reform(aliz)ing Copyright

CHRIS SPRIGMAN <http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=370802>
Stanford University - School of Law

Stanford Law Review, Forthcoming

Abstract:     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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