Academic journal article Harvard Journal of Law & Technology

A Perfect (Copyright) Union: Uniting Registration and License Designation

Academic journal article Harvard Journal of Law & Technology

A Perfect (Copyright) Union: Uniting Registration and License Designation

Article excerpt

I. INTRODUCTION II. HETEROGENEITY     A. Systemic Heterogeneity     B. License-Based Approach        1. Some-Rights-Reserved Licensing        2. The Creative Commons License Scheme        3. An Incomplete Solution III. FORMALITIES     A. The Elimination of Formalities     B. Reintroducing Formalities: A Solution? IV. COMBINING FREE LICENSING WITH COPYRIGHT     REGISTRATION     A. A Modest Implementation     B. Sweetening the Deal: A Public-Private Copyright        Registration System     C. Critique V. CONCLUSION. 

I. INTRODUCTION

A major criticism of the current copyright system is that it affords overly broad protection in terms of the duration, works, and uses covered. (1) Following the passage of the Copyright Act of 1976 (2) and the Berne Convention, (3) copyright protection has been given extraordinarily long duration, (4) and breadth-limiting formalities have been eliminated. (5) Virtually any use of the creative expressive content in a work is subject to control by a copyright-holder, (6) and attempts to invoke the "fair use" exception can result in protracted legal disputes. (7) The result is near-constant infringement of copyright, made bearable only by virtue of limited enforcement. (8)

Transaction-cost barriers to licensing copyrighted content exacerbate this problem. Each time an individual wants to make use of content, she must (1) identify all of the potentially protected works embodied in the content, (9) (2) identify the protected or unprotected status of those works with respect to the intended use, (10) (3) identify the relevant copyright owners, and (4) negotiate a license or determine that the expected/potential liability is sufficiently low to permit unlicensed use. The homogeneous nature of the copyright system reinforces this problem. While the copyright system uses a one-size-fits-all approach to incentivize content creation, many creators would be sufficiently incentivized by a system that freely permitted some types of uses, or use by some types of users. Consequently, most uses of protected works--even uses to which virtually any author would consent--must be cleared through this high-transaction-cost process.

The result is a copyright system that fails both content creators and content users. Content creators are denied opportunities to see their works disseminated because the system assumes by default that they want strong protections. Content users--both passive consumers and downstream creators--are denied opportunities to use works in ways for which copyright protection is not necessary in order to incentivize creation. Put simply, there are work-use combinations that are unnecessarily subjected to strong copyright protection and the associated high transaction costs of license negotiations. This Note refers to this as the overprotection problem.

This Note proposes a solution to this problem, based on a combination of two existing structures: copyright heterogeneity and copyright formalities. (11) Copyright heterogeneity describes structures that permit different types of copyright protection to be chosen by a content creator; today, copyright heterogeneity is achieved primarily through the use of form licenses that permit certain free uses of a work (for example, the Creative Commons licenses). Copyright formalities are steps--such as inclusion of a copyright notice or registration with a national copyright office--that must be taken by content creators to secure protection for their works. Although formalities once operated to substantially limit the number of works protected by copyright law, they have been relegated to an inferior status over time. Today, they operate only to limit enhanced damages or prevent certain evidentiary presumptions.

Parts II and III explore copyright heterogeneity and copyright formalities, respectively, as structures that mitigate or could mitigate the overprotection problem. These structures are examined with respect to their feasibility, the extent to which they address overprotection, and their potential fallbacks. …

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