us copyright, the internet, and the dilemma of formalities

US Copyright, The Internet, and the Dilemma of Formalities Michael Parrington 2013

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RESEARCH ESSAY US Copyright, The Internet, and the Dilemma of Formalities.

Introduction

Prior to the convergence of ‘the internet’1 and personal computer (“PC”) technology, many of the

traditional business models that relied on copyright were not only protected by copyright laws, but also

protected by the cost of obtaining the necessary infrastructure to make high volume copies and distribution

networks for those high volume copies.2 Continuing improvements in computer technology gave the

ability of digitisation, enabling exact copies of creative works at a cost-approaching zero.3 When linked

with the internet and its decentralised end-to-end architecture, widespread distribution with little

requirement of physical distribution is enabled for almost anyone with a computer.4

These new technologies have given the ability for society to consume, distribute and create content that is

both innovative and socially beneficial,5 from the professional and amateur writings in personal or

networked blogs and wikis, photography that’s edited and posted online, music and movie production at

home or private studio for upload to online sites such as YouTube and Facebook, all of which can qualify

for copyright protection. At the same time these new technologies have given the individual user the

ability to create works based on those previously created, such as writings of fan fiction for favourite

movies, spoofs and parody’s of films and television shows, and reproductions of existing music.6 As such,

the potential societal benefits provided by these new technologies also presents a risk to the incomes of

original creators and the firms that invest in the production of those works.7

Prior to 1976, the US Copyright Act required a series of formalities as a prerequisite for copyright, where

failure to comply would lead to forfeiture of copyright protection.8 These formalities ensured that the

owners of the copyright could be identified and located, and moved all other works to the public domain,

where it was available for use without permissions.9 In 1976 the process began to remove formalities

from being a requirement for copyright, so that today copyright protection is automatically available to

1 “a global computer network providing a variety of information and communication facilities to its users, and consisting of a loose confederation of interconnected networks which use standardized communication protocols”, Shorter Oxford English Dictionary (6th ed. 2007). 2 Dan Hunter and Gregory Lastowka, ‘Amatuer to Amatuer’ (2005) 46 William and Mary Law Review 951, 965-967. 3 Urs Gasser and Silke Ernst, ‘From Shakespeare to DJ Danger Mouse: A Quick Look at Copyright and User Creativity in the Digital Age’ (Research Publication, No 2006-05, The Berkman Centre for Internet and Society, June 2006) 5 <http://ssrn/abstract=909223>. 4 Ibid 4. 5 John Palfrey, Urs Gasser, Mirium Simun and Rosalie Fay Barnes, ‘Youth, Creativity, and Copyright in the Digital Age’ (Research Publication, No 2009-05, The Berkman Centre for Internet and Society, June 2009) 80 <http://ssrn.com/abstract=1552415>. 6 Gasser and Ernst, above n3, 7. 7 William Fisher III, Promises to Keep: Technology, Law, and the Future of Entertainment (Stanford University Press, 2004) 31. 8 Christopher Sprigman, ‘Reform(aliz)ing Copyright’ (2004) 57 Stanford Law Review 485, 486-487. 9 Ibid, 487.


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even the simplest of creative works,10 and many that are readily available to any user of a computer

attached to the Internet.11

Before the digital age removal of the formalities regime seemed to make perfect sense,12 yet, with the

digital age providing the ability for many to create both primary and derivative works at low costs, this is

leading to arguments of what the balance should be between - on the one hand, the cultural benefit to

creativity and access presented by new technology, and on the other, the economic benefit of those

investing time or money in creative content business models.13 The difficulty of the situation is

commented on by the Supreme Court, “the more artistic protection is favoured, the more technological

innovation may be discouraged; the exercise of copyright law is managing the trade-off”.14

The past few years have seen scholars suggest that one of the methods to help readdress the imbalance

between economic and cultural values, is to reintroduce prerequisite formalities.15 At the outset this may

seem reasonable and straightforward, but the arguments of the protagonists for a return to the

formalisation, and the antagonists for the opposite are becoming more polarised.16 This essay first

provides a brief historical background on computers and the internet, a baseline for copyright today, then

examines the viewpoints and some of the proposed systems for a return to a formalities system in US

copyright.

BACKGROUND

Copyright finds its original principles in the UK Statute of Anne 1709. It gave the originator of a work a

series of exclusive, although transferable, rights to print, reprint or import the work over an initial term of

fourteen years and the option for an additional fourteen years from the date of first publication.17 The first

federal Copyright Act 1790 (U.S.) was closely modelled on the Statute of Anne and was supported by the

Constitution, giving rights to owners only for “printing, reprinting, publishing and vending”18 based on the

protection of the relevant technology of the time, the printing press.19

10 Ibid, 488. 11 Hunter and Lastowka, above n2, 965-967. 12 Sprigman, above n8, 489. 13 Brad A. Greenberg, ‘More Than Just a Formality: Instant Authorship and Copyright Opt-Out Future in the Digital Age’ (2012) 59 UCLA Law Review 1028, 1041. 14 MGM Studios Inc. v Grokster, Ltd., 125 S. Ct. 2764, 2775 (2005). 15 Jane Ginsburg, ‘The US Experience with Copyright Formalities: A Love/Hate Relationship’ (Research Paper, No 10-225, Columbia Journal of Law & the Arts, 18th January 2010) 3 <http://ssrn.com/abstract=1537247>. 16 Greg Sandoval, ‘The head of the Copyright Office says the law is broken: but can she fix it in time?’, The Verge (online), 20th March 2013 < http://www.theverge.com/2013/3/20/4126936/copyright-register-today-will-embark-on-mission-to-overhaul-us>. 17 Dan Hunter, Intellectual Property (Oxford University Press, 2012), 29-30. 18 Copyright Act of May 31, 1790, ch. 15, 1 Stat. 124 (1790). 19 Hunter and Lastowka, above n2, 966.


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At this stage, the barriers to entry to the content creation and distribution markets were high20 -

newspapers and books required a printing press and also a physical distribution network. This meant that

private writings were difficult to disseminate to a wide audience without the financial support and physical

distribution infrastructure from a content creator, such as a publisher.21 As such the business models of the

content creators were protected.

Enter the computer. Until the 1970s, research departments, educational facilities and big business were the

primary users of computer systems. This started to change in 1973 with the introduction of the Alto

microcomputer at Xerox Parc,22 and particularly in 1981 with the release of the IBM PC and subsequent

open licensing of the Microsoft DOS Operating System.23

Developments in microprocessor and storage technology meant costs were reducing and making a home

computer more affordable, and by 1983, IBM introduced the XT PC for sale with vastly improved

processing speeds and an option for a 10-megabyte storage capacity, and so began the ability for large

volumes of data to be stored on a home computer.24 ‘Clone’25 PCs were built on the back of the Microsoft

Operating System License, meaning ‘Clone’ PCs and related accessories for mass data storage and high-

quality printing were available on a common platform.26 Software that enabled greater volumes of data to

be stored in less space, such as MPEG-I,27 and accessories for reproduction, such as the CD burner and

laser printers gave the home user access to a machine and accessories capable of digitisation, exact

copying, printing and storage. Still, at this stage, high quality, high speed content copying of movies,

music, and books required specialist systems28 and a physical distribution network. This was to start to

change with the internet being made available for commercial development in 1991,29 thus enabling host-

to-host computer communication.30

The start of the internet dates back to 1969 with the connection of four computers and a project piloted by

the US Department of Defense through its Advanced Research Projects Agency (“ARPA”).31 The

ARPANet was created to discover if a series of connected computers were capable of maintaining

communication and data integrity should one of the computers be made redundant through a nuclear

20 Michael Porter discusses the five forces that are relevant to entry into, or protection of, a market. Two of the ‘barriers to entry’ for a new entrant are the capital investment costs and the access to distribution so as to be able to compete with the industry incumbent. If the ‘barriers to entry’ are high then it is difficult to successfully enter the market. See Michael Porter, Competitive Strategy: Techniques for Analyzing Industries and Competitors: With a New Introduction (Free Press, 2008). 21 Peter S. Menell, ‘Envisioning Copyright Law’s Digital Future’ (2002) 46 New York Law School Review 63, 66. 22 A Brief History of the PC, (29 August 2013) Policy Vol. 21 No. 3, 35 <http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=18520713&site=bsi-live&scope=site>. 23 David Yoffie and Renee Kim, ‘Apple Inc. in 2010’ (Case Study No 9-710-467, Harvard Business School, 1 September 2010) 4. 24 Comment, ‘1983: The IBM Standard Takes Over’ (Dec. 2002) 21 PC Magazine 5, 141. 25 “Clone” PCs were hardware systems designed to mimic the IBM x86 computer systems that operated a Microsoft Operating System. 26 A Brief History of the PC, above n22, 35. 27 Fisher, above n7, 15. 28 Ibid 18-25. 29 Michael Rustad, Rustad’s Internet Law in a Nutshell (Thomson Reuters, 2009) §1.1. 30 Ibid, §1.2(a). 31 Ibid, §1.1.


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attack.32 Redundancy was enabled by the creation and merging of the Transmission Control Protocol /

Internet Protocol (“TCP/IP”) data packet sharing and unique computer identification protocols by

engineers Vinton Cerf and Dr. Robert E. Kahn.33 In simple terms, this enabled a data file to be sent from

one computer to another via any connected computer and, at the same time, reliably verify the file has

been sent and received.

At this stage it was still a system for computer enthusiasts, but in 1992, Tim Bowers-Lee, an employee of

the European Particle Physics Laboratory, wrote the code built on the infrastructure of the Internet

creating the Uniform Resource Locator (“URL”). It enabled real-time graphics and text processing and

thus the birth of the World Wide Web34 - the easy ability for the common person or company to connect in

a commercial manner through the Internet.

Subsequent developments in the infrastructure of the internet and supporting software allowed any person

with a computer connected to the internet to engage in commerce, file sharing, and posting to bulletin

boards.35 The internet that is experienced today, further enabled advances in large file sharing, blogs,

social networks, wikis, folksonomies, email, cloud computing and virtual worlds.36 The so-called

‘semantic’ web is being developed with the goal of further enhancing data communication commonality to

help find, share and combine information more easily.37

These developments in software, which give the ability to create and copy, the capability of mass data

storage by anyone, and the ability for widespread distribution of digitised files at little cost, have thus

removed the economic barriers to entry leaving copyright and technology systems only to protect the

business models of the content creators.38

Over the generations, copyright law has adapted to new technologies as they became apparent,39 but is

currently having its validity tested due to the proliferation of the computer, hand held devices and

communication technologies based on the platform of the internet. With exponential increases of internet

adoption and computers expected to continue, with an even greater number of services to be conducted

online,40 this pressure is unlikely to diminish. Finding the right balance between the expectations of the

public good and the private rights of the individuals, as a result of the new technology, is a point for

divergence.

Currently copyright is a part of the US Intellectual Property Laws and the US Congress can grant

copyrights to authors so as to “promote the progress of… useful Arts, by securing for limited Times to

32 Ibid, §1.1. 33 Ibid, §1.2(a). 34 British Broadcasting Corporation, ‘The Great Leveling?’, The Virtual Revolution, 29 May 2010, Dr. Aleks Krotoski. 35 Rustad, above n29, §1.5(c). 36 Ibid §1.5(c). 37 Ibid §1.5(d). 38 Gasser and Ernst, above n3, 4. 39 Hunter and Lastowka, above n2, 965-966. 40 IBISWorld, ‘Percentage of services conducted online’ (Industry Report No F320, IBISWorld, August 2012).


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Authors… the exclusive Right to their respective Writings”41. In Twentieth Century Music Corp. v

Aiken42 the Court stated, “the immediate effect of our copyright law is to secure a fair return for ‘authors’

creative labour. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general

public good”. Based on this, the Copyright Act 1790 (U.S), and its subsequent revisions, is not a regulation

that protects ideas or symbols, rather it governs creativity and moreover the expression of ideas.43

The ownership of the copyright initially vests with the creator of the original work, the ‘Authors’, and for

a very long time, either 70 years after the passing of the author, or if a work for hire 95 years from

publication or 120 years from creation.44 Covering much more than it did in 1790 a work of authorship

now includes, among others, works of a literary, musical, dramatic, pictorial, motion picture, audiovisual

and sound recording type.45 Today if the author has created a work that is deemed original and suitable

subject matter that is fixed in a tangible form, then it is said to subsist,46 and the author is granted a series

of exclusive rights for reproduction, adaptation, distribution, performance and display.47

When any of the exclusive rights are infringed then the owner can demonstrate liability when they can

prove “ownership of a valid copyright, and copying of constituent elements of the work that are

original”.48 This is whether or not the infringement has been made for economic gain or otherwise, or

been knowingly infringed upon.

To balance the exclusive private rights against the general public good, they are subject to a number of

limitations such as compulsory licenses,49 first sale doctrine50, fair use doctrine,51 specific categories of

copying required for computer networks,52 and the public domain.53

Additionally, works of authorship such as computer programs, music and movies can have extended [para-

]copyright protection provided to them by the Digital Millennium Copyright Act (“DMCA”) (1998) (U.S.),

which was introduced to update the laws of the digital age in line with the 1996 World Intellectual

Property Organisation (“WIPO”) Treaty.54 This enabled the owner to add code that protects their work,

where the DMCA forbids the use of any devices that evade digital rights management (“DRM”) systems.55

41 United States Constitution art I § 8. 42 422 U.S. 151, 156 (1975) (‘Aiken’). 43 Copyright Act 1976 (U.S.) § 102(b), codified as 17 U.S.C. § 102(b). 44 17 U.S.C. § 302. 45 17 U.S.C. § 102(a). 46 17 U.S.C. § 102(a). 47 17 U.S.C. § 106. 48 Feist Publications, Inc. v Rural Telephone Service Co., 499 U.S. 340, 361 (1991). 49 17 U.S.C. § 115. 50 17 U.S.C. § 109. 51 17 U.S.C. § 107. 52 17 U.S.C. § 512. 53 See, 17 U.S.C. §§ 108, 110, 1008, which specify some additional special limitations on the exclusive rights. 54 World Intellectual Property Organisation Copyright Treaty, adopted in Geneva on December 20, 1996. 55 17 U.S.C. § 1102.


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Discussion

PartI–Subsistence&Two-TieredFormalities

Prior to the revisions of the Copyright Act 1976 (U.S) three formalities were required to secure copyright

protection and period renewals in a work of authorship.56 These formalities were: registration with the

copyrights office, depositing copies of the work with the Library of Congress, and placing an appropriate

copyright notice on the work.57 When these formalities were not followed, a work would enter into the

public domain,58 where the public domain is all of the works not subject to copyright protection.59

As of 1 January 1978, the Act altered this to a work being protected as soon as it was fixed in a tangible

form, and removed the requirement to be published in order to have copyright protection. Nevertheless,

until 1992, registration of the copyright was required to enable the copyright term to be renewed.

Congress removed the absolute formalities requirement and especially that of the copyright notice in line

with the Berne Convention from an effective date of 1 March 1 1989, so “the enjoyment and the exercise

[of copyright] shall not be subject to any formality”.60 This is where the US Copyright Office conceded its

copyright position based on utilitarianism to the European copyright principle basis of natural rights and

attribution.61 These changes to copyright subsistence had the effect of allowing virtually any work that

passed the basic creativity test to be protected by copyright.62 For example, something as simple as writing

or responding to a blog, writing an email, uploading a family video or posting a ‘selfie’63 on a social media

website would be capable of qualifying for copyright protection.

This ‘amateur’64 type creation of content is among the reasons the protagonists for change recommend a

return to a formalities system in the US.65 There has been a massive increase in the creation and

distribution of content by the amateur due to the abilities afforded to them by high-quality, cheap

hardware and software for home based creation, access to high-speed internet and content distributing

websites.66 The facts on this show that 44% of internet connected Americans have either published or

responded to blogs, uploaded pictures and shared files.67 Yet, at the same time, many of the younger

generation of internet users are unaware of their copyright rights, or those of others.68 This suggests that

56 Lawrence Lessig, Free Culture: The Nature and Future of Creativity (Penguin Books, 2005) 136-139. 57 Hunter, above n 17, 44. 58 Stephen McJohn, Intellectual Property: Examples and Explanations (Aspen Publishers, 3rd ed, 2009) 126. 59 The public domain includes any official publication from the U.S. government as well as those items that may have previously enjoyed copyright protection but have come to the end of their protected period, for example works published prior to 1923. Palfrey, Gasser, Simun and Barnes, above n 5, 82. 60 Berne Convention for the Protection of Literary and Artistic Works, as amended on September 28 1979, art 5(2) (‘Berne’). 61 McJohn, above n58, 158. 62 Ginsburg, above n15, 3. 63 A “selfie” is a colloquial term for taking a photograph of ones-self. 64 An “amateur” user of the Internet “[receives], build[s] upon, copy[s]… and retransmit[s] original information” without “financial and proprietary motives”, Hunter and Lastowka, above n2, 965-967 65 Ginsburg, above n15, 3. 66 Hunter and Lastowka, above n2, 982-984. 67 Gasser and Ernst, above n3, 6. 68 Palfrey, Gasser, Simun and Barnes, above n5, 84-90.


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there is a significant amount of copyrightable works sitting on the internet without clear claim by the

owner, as well as millions of people sharing copyrighted works without the permission of the owner.69

The protagonists argue a fundamental problem of automatic subsistence is that it is not culturally

beneficial because it reduces the volume of works available in the public domain.70 They suggest that a

return to formalities as a prerequisite to copyright subsistence will reduce the total volume of works that

are protected by copyright, as an owner would need to claim works or loose them to the public domain.71

The cultural benefit argument is justified in copyright based the works of Hegel, but also Locke.72 The

natural rights belief is generally against the over reach of law that may constrain or restrict the individual

right to ownership and ability share the work with others, where in the case of copyright the creation of

new works requires the sharing of all works otherwise it will be at the detriment of overall cultural

development.73 This is seen in the reading the Copyright Clause, as it is developed not only to provide a

private economic benefit, but also to “to stimulate artistic creativity for the general public good,”74 and

“intended to increase and not to impede the harvest of knowledge”.75

The reasons for the formalities requirements prior to the 1976 Copyright Act were well documented. The

House Report 94-1476 discussed the existing law and saw the requirement for notice as a relatively easy

step to take in guaranteeing copyright and principles of the Copyright Act.76 Furthermore the copyright

notice served as a clear claim of copyright to others, identifying the owner and the available period

remaining for protection.77 It was also clear that copyright would not apply to any work that was

unclaimed, thus entering the public domain.78 Although no longer an absolute requirement for copyright

subsistence, the formalities of notice, registration and deposit is still supported by the Copyright Act 1976

(U.S.) and its use offers benefits to the copyright holder in terms of the ability to take action for and gain

remedies against infringement.79

Notice was a requirement for copyright prior to 1 March 1989, and had led to what many considered to be

unreasonable loss of copyright protection. For example in the Estate of Martin Luther King, Jr. v CBS,80

the famous 28 August 1963 speech by King of “I have a dream” had been witnessed live by 200,000

people and copies of the speech had been handed out to journalists, as well as the speech being broadcast

69 John Quiggin and Dan Hunter, ‘Money Ruins Everything’ (2008) 30 Hastings Comm/Ent Law Journal 203, 247. 70 Lessig, above n56, 225-227. 71 Ibid. 72 David Dante Troutt, ‘I Own Therefore I Am: Copyright, Personality, and Soul Music in the Digital Commons’ (2010) 20 Fordham Intellectual Property, Media and Entertainment Law Journal 373, 389-390. 73 Ibid. 74 Aiken, 422 U. S. 151, 156 (1975). 75 Harper & Row, Publishers, Inc. v Nation Enterprises, 471 U. S. 539, 545 (1985) 76 H.R. Report No. 94-1476, 94th Cong., 2d Sess., at 146-149 (1976) (U.S). 77 “Under the present law the copyright notice serves four principal functions. . . : (2) It informs the public as to whether a particular work is copyrighted; (3) It identifies the copyright owner; and (4) It shows the date of publication.” Ibid 143. 78 “[A] person acting in good faith and with no reason to think otherwise should ordinarily be able to assume that a work is in the public domain if there is no notice on an authorized copy or phonorecord and … if he relies on this assumption, he should be shielded from unreasonable liability.” Ibid 148. 79 17 U.S.C. § 411-412. 80 194 F.3d 1211 (11th Cir. 1999) (‘King’).


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on national television and radio. However, in 1999, the Court ruled that the speech was unpublished due

to the provisions of the Copyright Act 1909 (U.S.), particularly that a limited distribution of the speech to

journalists was not deemed a publication and neither was a public performance of the speech.

Today, notice is a reasonably easy, low cost step that an owner may take to lay claim to copyright. In the

case of any visual copies, the notice is as simple as placing an applicable mark in a reasonable location,81

stating ‘Copyright’ or recognised symbol, the date of publication, and the name of the owner.82 For

example, ‘Copyright © 2013 by Michael Parrington’. The benefit of providing the notice is that it clearly

identifies the owner that makes claims to the rights, and should make potential infringers aware that

copyright is claimed in the work. From a remedies perspective, the owner of the copyright will also

significantly increase the potential damages claim, as the argument of ‘innocent infringement’ is unlikely

to be plausible.83

The copyright owner may register either published or unpublished work at any time during the copyright

period.84 The process of registration is relatively straightforward and can be completed online.85 It requires

the completion of an application form, an online filing fee of US$35 and nonreturnable copies of the work

that will be ‘deposited’.86 There are numerous advantages to the registration of copyrights. The first is a

practical consideration, as for any owner of a US work cannot bring a civil action for infringement without

first registering the work with the Copyright Office.87 Secondly, it is required to qualify for statutory

damages or attorney fees,88 and is prima facie evidence of a valid copyright as long as it is registered

within five years of publication.89 Additionally, it is common for an Author to license or sell their

copyright to a third party, for example a publisher. In this case a transfer of ownership may be recorded

with the Copyright Office,90 and this will transfer the benefits of registration to the new owner.91

Nevertheless, when there is exclusivity in a license transfer of rights, its is important that a properly

executed legal document expressing the terms of agreement is used as an unsigned document or fax

without terms is insufficient to prove ownership.92

In the pre 1976 Copyright Act, failure to deposit may have led to a forfeiture of copyright as well as

fines.93 Today deposit is not required for copyright protection - and if there is no publication or

registration then there is no requirement to deposit.94 However, when a work is registered, a deposit must

be made, and if a US work is published then a deposit must be made within three months of the 81 17 U.S.C. §§ 401(c), 402(c). 82 17 U.S.C. § 401(b). 83 17 U.S.C. § 504(c)(2). 84 17 U.S.C. § 408. 85 United States Copyright Office, Copyright Basics (17 July 2013), United States Copyright Office, 7 <http://www.copyright.gov/circs/circ01.pdf>. 86 Ibid. 87 17 U.S.C. § 411. 88 17 U.S.C. § 412. 89 17 U.S.C. § 410(c). 90 17 U.S.C. § 205. 91 17 U.S.C. § 201(d)(2). 92 Radio Television Espanola v New World Entertainment, 183 F.3d 922 (9th Cir. 1999). 93 Sprigman, above n8, 487. 94 United States Copyright Office, above n85, 10.


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publication to the US Copyright office or Library of Congress,95 otherwise fines will occur and

registration may be invalidated.96

This identification of the copyright owner through notice, and preferably with registration including that

of ownership transfers, is a benefit that the protagonists would like to see as a requirement on all works,

for reasons that will be discussed in further part II. It is fair to suggest that deposit is the least important of

the protagonists interests in having a return to formalities, however, the cultural benefit is clear in the

importance in maintaining a history of works that may otherwise disappear.97

For authors who create infrequently, the cost of registration in the current system may seem insignificant;

although there is no doubt that there is an economic burden to the registration of copyright especially for

those authors who regularly create.98 This perhaps goes to the overall natural rights of attribution versus

the utilitarian argument regarding the value of a work and whether it is worth registering for potential

future returns, and whether this should preclude copyright protection. As a purely financial argument it is

unlikely anyone will register a work for $35 if that work will likely never return an income to the owner.

The antagonists see no need to reintroduce prerequisite formalities, advising that the large content creators

already utilise the available US two-tiered system,99 and that this utilitarian consideration falls to

economics and financial risk. In regards to the economic argument, it is important to understand the goal

of a firm as to its financial investment activities. In accordance with Bentham’s utilitarian philosophical

justification for copyright and private property rights,100 the goal of the firm is the maximisation of

shareholders wealth, as this will be the efficient and productive use of societies scarce resources.101 In

providing this return for its investors, the firm must grapple with uncertainty of returns and timing of

returns, also known as risk.102 These factors lead to investment decisions being based upon the risk

profiles of different investment opportunities, and to a point where, if an investment is too risky it will be

abandoned.103

In terms of risk profile, the lack of notice or registration of works potentially makes it very difficult to

clearly identify that it is copyright protected or claimed. This may create an issue for the large content

creator when investing in the development of a new song or film only to find out at a later date that it is

considered an original work of a different owner or derivative work of a previously created copyrightable

work.104 The registration of works thus, can clearly demonstrate ownership of copyright and it has been

95 Ibid 8-9. 96 McJohn, above n58, 133-134. 97 Talibah-Mawusi Smith, ‘Culture, Knowledge, Law and Community: When the Well Runs Dry Dig Deeper: The Case for Funding the Public Library, A Necessary Resource for Minorities’ (2012) 22 Berkeley La Raza Law Journal 137, 142-143. 98 Lessig, above n56, 254 99 Ginsburg, above n15, 3. 100 Hunter, above n17, 16-25 101 J William Petty, Arthur Keown, David Scott Jr., John Martin, Peter Martin, Michael Burrow and Hoa Nguyen, Financial Management: Principles and Applications (Pearson Education Australia, 5th ed, 2009) 3. 102 Ibid 4. 103 Ibid 4-9. 104 Ginsburg, above n15, 2.


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suggested that the clear identification of copyrighted works through a registration system would be of

tremendous benefit to the large content creators so as to locate and secure rights for its investments.105

Although it should be noted that even with the two-tiered formalities system, the amateur or individual

professional is unlikely to pursue an infringement through the courts due to the costs of the action,

whether formalisation exists or otherwise.106

PartII-Duration

Since the original federal Copyright Act 1790 (U.S) gave periods of protection of 14-years with an

optional extension of an additional 14- years if the author was still alive, there have been subsequent

extensions to those periods supported through revisions by Congress, and the removal of the requirement

to formally renew so as to secure a full term of copyright protection.107 Pivotal to the period of protection

is the revision of the Copyright Act 1976 (U.S.), which initially provided that, for works created after 1

January 1978, the period of protection extends to the life of the author or last surviving author for joint

works for 50 years, before having an additional 20 years added as modified by the Copyright Term

Extension Act 1998 (U.S.) (“CTEA”).108 Where the work is made for hire that is 95 years from publication

or 120 years from creation,109 or, for those works published before 1 January 1978, the period is 95 years

from the publication or registration.110 For an unpublished or unregistered work then as long as it was

finally published before 2003 the copyright will remain until 2047.111 In general terms this means that only

those works made before 1923 have fallen into the public domain.

Noting that the rights to copyright ownership could be bequeathed to surviving spouses, next of kin,

executors of estates, or otherwise transferred to a third party, it suggests that being able to locate the

current owner of a copyrighted work, even where the original holder is identified, may be expensive at

minimum or even impossible.112 This is because of a lack of recordation of those current copyright

owners,113 notwithstanding the issue of automatic subsistence also creating a similar problem. It seems

quite an absurd proposition when considered in relation to other physically held ‘real’ property or even

other types of intellectual property, such as patents.114

This ever increasing issue is referred to as ‘orphan’ works, an analogy coined to suggest that the

copyrighted work has lost or been abandoned by its parents, or owners.115 In terms of culture the risk of

105 Ibid. 106 Ibid 25. 107 Lessig, above n56, 133-135. 108 17 U.S.C. § 302(a) – 302(b). 109 17 U.S.C. § 302(c). 110 17 U.S.C. § 304. 111 17 U.S.C. § 303. 112 Lessig, above n56, 222. 113 Ariel Katz, ‘The Orphans, the Market and the Copyright Dogma: A Modest Solution for a Grand Problem’ (2012) 27 Berkeley Technology Law Journal 1285, 1286, 1288. 114 Lessig, above n56, 223. 115 See, footnote 18, Katz, above n113, 1290.


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not being able to adequately identify the owner of the original copyright, so that a derivative work, or even

a restorative work, can be created is placing a “brake on culture”.116 The protagonists suggest that a return

to a prerequisite formalities system will ameliorate this issue by making all of the copyright owners

locatable.

To place some facts on just how difficult a task it might be to locate the current owners of copyright in

works, it is suggested that 75% of the silent films from the 1920s are orphans.117 22% of the publishers of

the books in the libraries of Carnegie Mellon can-not be located,118 and the US Copyright Office suggest

that they have no idea just how many copyrighted works have been orphaned.119

There has been suggestion that the way to overcome this would be nothing to do with a return to

prerequisite formalities, and rather everything to do with reducing the duration of copyright protection to a

more reasonable time frame. However, the likelihood of this has been rejected by the Supreme Courts in

Eldred v Ashcroft120. In Eldred the constitutionality of the extension to the duration of copyright in the

CTEA was challenged as it did not only give power of monopoly for ‘limited times’ and prevented the

first amendment right of freedom of expression by works falling to the public domain. The Court held

that Congress had not gone beyond its power in the copyright clause, and that freedom of expression was

adequately dealt with in the fair use doctrine and ideas being excluded from protection.

Picking up on this, antagonists point towards the protection already afforded in the Copyright Act for use

of existing works, namely the ‘fair use’ doctrine. The fair use doctrine is said to “operate as a check on

the monopoly powers that copyright holders would otherwise enjoy over the creative output”.121 It allows

for the use of copyrighted works without needing to gain permission to or pay the owner for use of the

copyrighted material especially, but not only, for “criticism, comment, news, reporting, teaching,

scholarship, or research”,122 and in this way is said to help balance the interests of cultural diversity over

the private interests of copyright owners.123 For example where the protagonists suggest that ‘mash-

ups’,124 ‘fan-fiction’125 and ‘music sampling’126 are popular categories of modern creativity that can be

restricted by locating the owner for permission to use, the antagonists will suggest that the law is

reasonable.127

The application by the courts of fair use relevant to this type of modern creativity enabled by technology,

and particularly ‘mash-ups’ and ‘music-sampling’ is given some guidance by Campbell v Acuff-Rose

116 Lessig, above n54, 227. 117 Greenberg, above n13 , 1040. 118 Ibid 1039. 119 See, FN6, Ibid 19. 120 537 U.S. 186 (2003) (‘Eldred’). 121 Palfrey, Gasser, Simun and Barnes, above n 5, 81. 122 17 U.S.C. § 107. 123 Palfrey, Gasser, Simun and Barnes, above n 5, 81. 124 “a Mash-Up is where the vocal of one song is laid over the music of another”, Gasser and Ernst, above n3, 7. 125 “[fan fiction] is fiction written by fans of a movie, TV Show… or the like. The fiction develops new plots by using characters, situations, or locations of the fan’s media work”, Gasser and Ernst, above n3, 7. 126 “sampling [is], where the creator takes a portion of one sound recording and reuses it as an element of a new recording”, Gasser and Ernst, above n3, 7. 127 See Gasser and Ernst, above n3, 8-9.


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Music128. The members of the 2-Live Crew had created a parody ‘oh Pretty Woman’ based on the original

of Roy Orbison’s bands ‘Pretty Woman’. The Court ruled on the weight of the four factors used to

determine fair use,129 and especially that the character of the work was ‘transformative’ and unlikely to

cause effect to the market value of the original, even though the 2-Live Crew copied extensively from the

original, therefore on balance fair use.

It has been suggested that fair use is applied inconsistently, is a doctrine that needs a lawyer,130 and “the

most troublesome law in the whole of copyright”.131 In Warner Bros. Entertainment, Inc. and J. K.

Rowling v RDR Books132 the defendants were attempting to publish an online encyclopedic non-fiction

guide ‘Lexicon’ to the Harry Potter fictional works, to assist the readers of the fictional works with their

understanding, which they contended was fair use. The publisher and author contended that the guide was

in breach of their exclusive rights as elements were substantially copied in terms of quotes, phrases, plots,

summaries of scene’s etc. The Court agreed with the plaintiff that the defendant failed to establish fair use

due to substantial elements being taken from the original works that were not needed to create a reference

guide. To try and fully understand the difference between why Campbell was successful in showing fair

use and RDR Books was not, even though substantial elements were copied in both, is not so straight

forward, and especially for those unfamiliar with the idiosyncrasies of the legal system, such as an

amateur.

In light of the inconsistency of the fair use doctrine, the protagonists sensibly to suggest that anyone who

is about to make a creative work from an existing work should seek the permission of the owner, so as to

avoid future possible costly litigation. Consequently, it would seem completely reasonable that a return to

a formalities system where the owner is responsible for ensuring that the copyright is registered and noted,

so as to have the ownership of those works clearly and easily locatable, and thus allow those works that

are perceived as having little economic value or owners who care not for maintaining copyright in their

works to fall to the public domain.133

The antagonists point to the fact that the last decade has seen a massive increase in blogging, posting of

photographs to sites such as Flikr, self-expression on Myspace and Facebook, etc. and with very little

hindrance or requirements for the courts to become involved, suggesting that much of the argument for

any reform in the copyright law is a scare campaign.134 For example, its very unlikely that if a husband

and wife create a Michael Jackson ‘Thriller’ styled wedding dance, and post it online, that they can expect

the owners of the original music movie to sue or serve a DMCA take down notice.135 In this way they

argue that the creation of amateur content is not really seen as a threat to the large content creators as high 128 510 U.S. 569 (1994) (‘Campbell’). 129 See, e.g., 17 U.S.C. § 107. 130 Lessig, above n56, 224. 131 Dellar v Samuel Goldwyn, Inc. 104 F.2d 661 (2d Cir. 1939). 132 575 F.Supp.2d 513 (SDNY 2008) (‘RDR Books’). 133 Ginsburg, above n15, 2. 134 The Economist Debates, Copyrights and Wrongs (14th July 2013) <http://www.economist.com/debate/overview/144>. 135 The DMCA provides a number of “safe harbour” protections for online service providers, which requires the issue of take down notice and non-compliance with that notice prior to being heard by a court, see 17 U.S.C. § 512.


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quality content ‘wins’ because it is still what people want to see, pointing out that the top three most

watched channels on YouTube are from the professional large content creators.136

Conversely, protagonists may point to cases such as Los Angeles Times v Free Republic,137 where the

operator of an internet forum was sued by the publisher for allowing re-posting news articles. The court

ruled that fair use was not applicable, even though reproduced for comment, as the works were generally

verbatim copies. This type of case seems the exception rather than the rule, especially as evidence

suggests that the content creators are not being financially damaged,138 and so why should they bother

heading to the courts even for the millions of daily infringements that are occurring.139

Industry(contentsector) AnnualGrowth08-13 ExpectedGrowth13-18

InternetPublishingandBroadcastingintheUS 9.4% 17.3%

PerformersandCreativeArtistsintheUS -1.5% 1.3%

MusicalGroupsandArtistsintheUS -1.2% 2.0%

IndependentLabelMusicProductionintheUS -0.5% 0.3%

MajorLabelMusicProductionintheUS -2.8% 2.0%

MusicPublishingintheUS -3.8% 1.0%

MovieandVideoProductionintheUS -2.8% 2.5%

MovieTheatresintheUS 1.4% 1.7%

MovieandVideoDistributioninUS -1.7% 0.2%

TelevisionProductionintheUS 1.6% 4.9%

TelevisionBroadcastingintheUS -1.1% 1.7%

PhotographyintheUS -1.9% 1.6%

MagazineandPeriodicalPublishingintheUS -4.6% -0.5%

NewspaperPublishingintheUS -6.8% -3.7%

BookPublishingintheUS -1.4% 0.6%

RadioBroadcastingintheUS -2.3% 1.3%

SoftwarePublishingintheUS 4.3% 1.7%Table 1 - Source: IBISWORLD Industry Reports 2012-13

Most of the content sectors in the US place the reason for poor economic growth between 2008-12 directly

with the disposable income of the American consumer, who suffered as a result of the Global Financial

Crisis.140 Interestingly, most sectors have adapted their business models to suit the requirements of the

136 The Economist Debates, above n134. 137 2000 U.S. Dist. Lexis 5669 (C.D. Cal. March 31, 2000) (‘Free Republic’). 138 See Table 1. 139 Quiggin and Hunter, above n69, 247. 140 See, e.g. Kevin Boyland, ‘Internet Publishing and Broadcasting in the US’ (Industry Report No 51913b, IBISWorld, March 2013) 9-10, Matthew MacFarland, ‘Performers and Creative Artists in the US’ (Industry Report No 71151, IBISWorld, December 2012) 5, Matthew MacFarland, ‘Musical Groups and Artists in the US’ (Industry Report No 71113, IBISWorld, November 2012) 5, Antonia Donava, ‘Major Label Music Production in the US’ (Industry Report No 51222, IBISWorld, March 2013) 5-10, James Crompton, ‘Music Publishing in the US’ (Industry Report No 51223, IBISWorld, July 2012) 8, Agata Kaczanowska, ‘Movie and Video Production in the US’ (Industry Report No 51211a, IBISWorld, April 2013) 5, Matthew MacFarland, ‘Movie Theatres in the US’ (Industry Report No 51213, IBISWorld, June 2013) 4-5, Agata Kaczanowska, ‘Television Broadcasting in the US’ (Industry Report No 51312, IBISWorld, February 2013) 4-6, Kiera Outlaw, ‘Photography in the US’ (Industry Report No 54192, IBISWorld, April 2013) 5, Jesse Chiang, ‘Magazine and Periodical Publishing in the US’ (Industry Report No 51112, IBISWorld, July 2013) 5-8, Austen Sherman, ‘Newspaper Publishing in the US’ (Industry Report No 51111, IBISWorld, July 2013) 9, Jesse Chiang, ‘Book Publishing in the US’ (Industry Report No 51113, IBISWorld, June 2013) 4.


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internet consumer.141 It is particularly clear from Table 1, that Internet publishing and broadcasting sector

has performed strongly in the same period, and that with the exception of newspaper and magazine

publishing that all content creation sectors are expecting annual growth between 2013 and 2018. The

conclusion that should be drawn from the financial forecasts of the content sectors is that the current

copyright system with its two-tiered formalities is protective of copyright owners, suggesting they may see

no need to change to a prerequisite system.

If the antagonists are correct and there are, indeed, few legal challenges to amateur created derivative

works, then their argument to not interfere with current formalities, or other parts of copyright law, seem

quite reasonable. Although, as noted earlier, are the content creators also protected by the inhibitive court

costs for the individual professional or amateur starting an action and is this a happy medium that the

courts see as a tempering mechanism?142

Finally, if the content providers are already known to add a notice and register their works with the

copyright office, this point of the benefit of prerequisite formalities promoted by the protagonists may

already be a worthless argument, as owners could be identified, located and permission to use could easily

be sought. Furthermore, clear direction on the courts sentiments towards fair use on amateur type works

are demonstrated in Free Republic, where the court noted as long as fair use principles were followed the

practices would not be infringement.

PartIII–TechnologyMeasures

Contracts and end-user-license agreements may also limit a digital users ability to legally access and use

digital works for transformations, whether protected by copyright or not.143 In particular there has been a

growing trend to overcome and exclude protections that may be legitimate in copyright law through the

use of contract laws and in particular DRM systems. These systems can in many ways add additional

limitations to the use of copyrighted works. For example, iTunes may limit to five the number of devices

that a purchaser of music can physically use, whereas the first sale doctrine should allow ‘lawfully made’

copies under the ‘fair use’ provisions.144

Probably the more controversial systems for limitation are the DRM systems, which have been used to

prevent fair use of digital data for transformative use.145 The DRM systems are protected by anti-

circumvention legislation in the US,146 which was brought in with the DMCA and gives both civil and

criminal remedies against an infringing party,147 to which there are limited exceptions only.148 Congress’s

141 Ibid. 142 Ginsburg, above n15, 25. 143 Gasser and Ernst, above n3, 11. 144 McJohn, above n58, 174. 145 Gasser and Ernst, above n3, 10-11. 146 17 U.S.C. §§ 1201, 1202. 147 17 U.S.C. §§ 1203, 1204. 148 17 U.S.C. §§ 1201(a)(1)B-E, 1201(f-h).


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purpose with the introduction of the DMCA was to prevent technological developments from being

slowed by copyright law and in particular protecting 3rd parties such as internet service providers against

secondary infringement actions, which could not be started until takedown notices had been delivered to

the secondary infringing party.149 Thus section 512 may have also created a pseudo requirement, for those

who wished to sue, to register the works so that statutory damages could accumulate, similarly to standard

copyright.150

The protagonists suggest this is a part of the current US legislation that may be problematic and that could

benefit from the reintroduction of formalities to copyright. They say current code of the DMCA protects

large content creators and potentially disadvantages cultural development by providing technological

protection for anti-copying technology and anti-access technology.151 Broadly speaking section 1201

prohibits the act of circumventing anti-access technology and the making or selling of devices that

circumvent,152 but does not require the clear identification of the inclusion of a DRM on the work by the

data provider. The interesting piece of the statute is that circumventing an anti-access measure is in

violation of section 1201 as this has the possibility of preventing the user of taking parts of the work for

what would otherwise be considered fair use in copyright law, as fair use does not authorize unauthorized

access. For example if an artist was taking components from a song so as to create a parody of that song

then the use without any anti-circumvention device would be considered fair use,153 but if the file is digital

and protected by an anti-circumvention measure then breaching that device could be a violation of section

1201. Noting there is no specific fair use exception in the statute.

The protagonists are concerned that DRM systems can be used as a legal sword to control legitimate uses.

In The Chamberlain Group, Inc. v Skylynk Tech., Inc.,154 the plaintiff manufactured a garage door that

used a ‘rolling code’ security mechanism, and the defendant manufactured a universal access remote

control to enable access to the Chamberlain ‘rolling code’. One supposes this was to prevent legitimate

aftermarket competition. However, to establish a violation of the DMCA, it must be shown that the DRM

system being circumvented has some “reasonable relationship to the protections that copyright otherwise

affords”. The Court ruled that this was not the case as the owners of the Chamberlain door were entitled

to access the operating code. The Chamberlain case, and also similar cases such as Lexmark International,

Inc. v Static Control, Inc.155 brought on violation of section 1201, would help form the antagonist’s belief

that the courts do not unreasonably apply this para-copyright without the support of the underlying

copyright rights, and as such it does not need reform. Although, on the other side of the coin, DRM’s may

149 Greenberg, above n13, 1051. 150 Ibid, 1051. 151 17 U.S.C. § 1201. 152 17 U.S.C. § 1201. 153 See, Campbell, 510 U.S. 569 (1994). 154 381 F.2d 1178 (FED.Cir. 2004) (‘Chamberlain’). 155 387 F.3d 522 (6th Cir. 2004), where Lexmark tried to use DRM to protect its ink cartridges and Static controls manufactured a chip to overcome the DRM. The Court held that the DRM did not prevent reading or copying and was not an ‘access control’ and the DMCA was therefore inapplicable.


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already be providing the protagonists with a quasi-formalities system, as the amateur creator has little use

for protecting their creative investment and, likely, will not protect it with a DRM.156

Still, the protagonists suggest that these DRM systems provide the content creators with a very powerful

set of protection provisions that go well above those of copyright law.157 Certainly the courts have had

difficulty in this area, for example in Universal City Studios v Chorley158 the court would not consider fair

use in relation to section 1201 and would not address the constitutional question of limiting free speech by

not allowing fair use considerations. In support of the protagonists, there is a proposed bill that was

introduced into the House of Representatives on 8 May 2013, with the purpose of “amend[ing] section

1201 of title 17, United States Code, to require the infringement of a copyright for a violation of such

section”.159

In this case having a formalities system that enables copyrighted works to be identified, may enable users

to know if they can legitimately access works protected by anti-circumvention measures, or otherwise

know where to seek permissions.

PartIV-SuggestedSystemsandTheirMerits

There have been a number of methods suggested for a reintroduced formalities system, which generally

revolve around the principles of opt-in or opt-out. In many ways the opt-in registration for copyright

system already exists, even then if only as a prerequisite enabling an infringement case to be brought

before the courts.160 However, as noted, registration is not a condition to copyright protection,161 and has

led to a general reduction in registrations since removed as a prerequisite formality.162 Whilst registration

is a choice, it may be one that many are unaware of or choose not to complete, which will not remove the

problems associated with orphan and other unclaimed works.

The harsh formalities of the old opt-in regime of the pre 1976 Acts, unreasonable, as many comprehend

them, now seem to be favoured in a proposition for a return to prerequisite formalities for copyright.163

Proponents of this change, such as Lessig, have suggested that copyright protection should be conditional

to the registration and renewal of copyright,164 with a 5-year term with renewal up to 14 times. Others

such as Landes and Posner suggest a similar system that is tied to 20-year periods.165 The suggestion is

these registration systems would be administered through a market-based system similar to that of URL

156 Quiggin and Hunter, above n69, 248. 157 Lessig, above n56, 143-152. 158 273 F.3d 429 (2d Cir. 2002). 159 Unlocking Technology Act of 2013, 113th Cong., 1st Sess. (2013) (U.S.) 160 17 U.S.C. § 412. 161 17 U.S.C. § 102(a). 162 Sprigman, n8, 495-497. 163 Ginsburg, above n15, 3-4. 164 Lessig, above n56, 249. 165 William Landes and Richard Posner, ‘Indefinitely Renewable Copyright’ (Working Paper, No 154, John M. Olin Law & Economics, 1st August 2002) <SSRN: http://ssrn.com/abstract=319321>.


17

registrations for web addresses.166 Even so it is likely that events such as King could not be completely

ruled out as a possible side effect.

With the economic arguments of an opt-in system set aside, and even though these methods seem a

reasonable way to overcome the issues of orphan works and automatic subsistence, they both suffer from

the same principle problem. That is that they contravene the revisions of the Copyright Act 1976 (U.S.)

and ultimately the multilateral treaty agreements based on Berne ensuring copyright is not conditional on

formalities.167

It should be noted that, even if Berne specifically forbids reinstatement of formalities on foreign works,

the requirements of Berne do not absolutely prevent the US from reinstating formalities requirements on

US works as Berne specifically preserves domestic laws.168 In this understanding, such a change to

reinstate formalities could be as simple as reverting the wording in the relevant sections of the statute back

to “shall use a copyright notice” from the current version “may use a copyright notice”.169 The issue of

such a change would be that it likely discriminates against local US creators, and that US creators could

use the internet to manipulate the origin,170 and therefore, in conjunction with maintaining the integrity of

multilateral agreements, it is highly unlikely that congress would be interested in considering such a

change.

The opt-out system is another muted by the protagonists and comes from the idea of open source software.

Open source software is where the author retains the copyright, but contractually licenses the ‘free’ use of

the software to the general public, where the actual uses for the software may be governed by agreements

to freely license any adaptations of the original software (derivative works) to all other users.171 A well

known open source software is the Linux operating system and the free release of the operating system

Kernel by Linus Torvalds in 1991, which has been developed by many firms as a basis for their computing

systems.172

From the open source software model a more generally applicable system has been created for artistic

works. The Creative Commons License allows anyone to use the owners works based on a broader set of

restrictions. These are: Noncommercial, which allows the work to be used for any purpose that is non-

commercial; No Derivative Works, is self explanatory and allows any other use of the work; Share Alike,

that allows derivative works to be shared with others only if governed by an identical license to that of the

original.173

166 Lessig, above n56, 289. 167 Berne, above n60. 168 Ginsburg, above n15, 3. 169 McJohn, above n58, 130. 170 Ginsburg, above n15, 3-4. 171 McJohn, above n58, 115-116. 172 Computer History Museum, Linus Torvalds (3rd September 2013) <http://www.computerhistory.org/fellowawards/hall/bios/Linus,Torvalds/>. 173 McJohn, above n58, 116.


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Though these opt-out license systems seem reasonable solutions, they are still voluntary, and as for the

current copyright formalities system, there will be a large percentage of individuals who will not use it.174

Moreover, it should be noted that these systems are contractual and cause for concern is that they have not

been tested in regards to the law in regards to termination.175 In the 1976 Copyright Act there were the

provisions for termination, provided by congress, to enable authors to terminate existing contracts that had

been entered into before the actual value of the work was understood.176 The ‘termination right’ came into

effect on 1 January 1978, on all works that were not ‘made for hire’ and allow the author to reclaim all of

the exclusive rights after 35 years but before 40 years.177 The first case to interpret these provisions is

Scorpio Music, et al. v Willis178, in which Mr Willis had tried to regain the rights to 33 songs, such as

‘YMCA’ and ‘In The Navy’, that he had co-authored but during the 70s had granted his rights in the songs

to the publisher. The Court found that Mr Willis had standing under section 203 of the Copyright Act to

be treated separately to the other authors and terminate his grants, which the publishers had argued against.

More relevantly to open source and creative commons licensing, is that the Scorpio Court also found that,

even though the assignment of rights was contracted beyond the initial term, “upon termination, Mr. Willis

would get back what he transferred – his undivided interest in the whole”.179 This suggests that there is the

chance that the courts may find in favour of authors, or inheritors, who wish to regain full control of what

they have assigned in open source or creative commons licencing prior to the end of the termination

period.

The purpose of the open source and creative commons licenses are perhaps different to standard

assignments of rights in the music, movie and literary works to publishers, and to overcome the

‘termination right’ it could be suggested that the author has abandoned the rights. Then again,

abandonment is a very rare and can only occur if the copyright owner intends to this and makes this

purpose overtly clear though an act,180 which it could be suggested is the purpose of a creative commons

license, although, abandonment is not assumed if the owner does not exploit the work or enforce the

copyright against infringers,181 which suggests this would be a tough argument to persuade the courts.

Both the opt-in and opt-out systems described are suggested methods to overcome the problems associated

with the lack of prerequisite formalities in US copyright, by effecting copyright laws directly. Without

direct effect to copyright or international treaties, there is scope for at least a partial resolution to the same

problems by using the provisions of the DMCA and technology on copyrighted works, whilst still

protecting the private rights of owners.

174 Sprigman, above n8, 496. 175 Greenberg, n13, 1060. 176 Brian Caplan, Navigating US Copyright Termination Rights (August 2012) WIPO Magazine <www.wipo.int/wipo_magazine/en/2012/04/article_0005.html>. 177 17 U.S.C. § 203. 178 11 Civ. 1557 (BTM), 2012 WL 1598043 (S.D.Ca. May 7, 2012) (‘Scorpio’). 179 Ibid. 180 Melville Nimmer and David Nimmer, Nimmer on Copyright (Matthew Bender, 2013) Ch. 13.06. 181 Ibid.


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Firstly, even though Berne requires that formalities are not a prerequisite for copyright subsistence, it does

not prevent other US domestic laws from existing in parallel as “protection in the country of origin is

governed by domestic law”.182 Additionally, as long as all rights of the copyright holder to remedies in the

court are not subject to a registration requirement, then registration is still supportive of enhanced

remedies such as statutory damages being available without contravening Berne.183 Foreign works would

also be subject to any local provisions in so much as they would be required to conform to US rules of

evidence and procedure, which is not prevented by Berne.184 These three points suggest that registration of

anti-copying and anti-access provisions to copyrighted works could be supported as a requirement of the

DMCA, and additionally provide enhanced remedies or limitations for action in the US Courts for

violations.

Secondly, section 1201 of the DMCA provides copyright owners with significant additional protections of

their intellectual property by the use of DRM systems, but currently no requirement to provide notice of

those mechanisms or registration.185 The addition to the legislation of the requirement to register and

provide notice of DRM could resolve many of the issues the protagonist proponents of both the opt-in and

opt-out regimes hoped to achieve with prerequisite formalisation of copyright, whilst still providing

necessary protection for the content creators. For example, the registration of a DRM system could

become a requirement of (1) protecting a copyrighted work in a digital form, and (2) a prerequisite for

enforcement action of section 1201. Such a registration system could also allow for creative commons

license type rights of access, and clear identification of this as the intent of the DRM and underlying

copyright owner.

Thirdly, the over protection of automatically subsisting copyright would be minimised in the digital space

by the financial investment required to protect a copyrighted work with a DRM. That is to say that an

amateur would be unlikely to add a DRM system to their work, even if they would like to retain copyright.

Finally, such a system could guard against both the innocent access to DRM systems, ensuring that DRM

systems are in line with the limits of their rights in copyright law.186

Such a formality would not need to create a new administrative office as the requirements of registration

and notice of DRM could be easily added as an extension to the existing formalities requirements of the

US Copyright Office’s notice, registration and deposit.

It has been noted that this type of registration of DRM systems would be consistent with the 1996 WIPO

Copyright Treaty that first envisaged DRM protection of intellectual property.187 Additionally, the treaty

suggested balance between the protection of the authors and the legitimate acts of users of copyrighted

182 Berne, above n60, art 5(3). 183 Ginsburg, above n15, 6-7. 184 Ibid 5. 185 Pamela Samuelson and Jason Schultz, ‘Should Copyright Owners Have to Give Notice about Their Use of Technical Protection Measures?’ (Research Paper, No 1058561, UC Berkeley Public Law, 19th November 2011) <SSRN: http://ssrn.com/abstract=1058561>. 186 Ibid 72. 187 Samuelson and Schultz, above n185, 72.


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materials that are protected by copyright law, and this would also be a method to provide such a

balance.188

The registration and notice of a DRM ultimately seems supportive of the fundamental intent of the US

Constitutions progress clause “to promote the progress of… the useful arts”189 by ensuring that the works

are available for the public use and general good as intended by the Copyright Act, but also “by

securing… to authors… the exclusive right to their respective writings”190 the clear protection intended for

the creator. This is also consistent with the fundamental philosophies of copyright in that it would help

ensure that natural rights of the author are retained, and the utilitarian economic rights are protected.

Moreover, out of the three systems discussed, this proposal seems consistent with the requirements of

Berne, which is likely necessary for any proposal for reform of an act with a direct or indirect affect on

copyright law.

However, experts including the antagonists would suggest that existing copyright law only needs fine

tuning,191 and that the law will find its balance, as it eventually does, such is the basis of the common law.

They would note that the markets also tend to discover a balance to innovative technologies by destroying

old business models and creating new ones in order to sustain.192 They could also suggest that no one has a

crystal ball to the future and technology, thus there could be new developments around the corner that

would make the current discussions on formalities require different legislation.193 To support this they

could show that the courts have (1) dealt heavy blows to companies incentivising copyright infringement

over the past two decades, even where they have tried to adapt technology to past court rulings194 and (2)

that the free market supported by these court decisions seems to have dealt with problems such as peer-to-

peer file sharing, as publishers of high value content seem to be growing or set for significant growth in

the next five years.195 Thus the courts and markets combined in overcoming the previous doom and gloom

of piracy where some of the same protagonists proposed an absolute need for statutory licensing.

The most likely scenario of all is that the status quo will remain, as “an overhaul of US copyright law has

historically required a Herculean effort”,196 and many concerned that any changes could in fact create a

worse situation than is currently apparent.197 On top of this, history shows that any significant reforms to

copyright law can take decades to be realised, as was seen in the 1976 modifications that began reform

discussions in the 1950s,198 perhaps suggesting that waiting for the courts and markets will occur anyhow.

188 Ibid. 189 art I § 8. 190 Ibid. 191 Bruce Lehman and Ronald Brown, ‘Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights’ (White Paper No KF2979.U55, US Patent & Trademark Office, September 1995) 17. 192 Joseph Schumpeter, Capitalism, Socialism and Democracy (Routledge: 1942). 193 Lehman and Brown, above n191, 5. 194 See e.g. A&M Records, Inc. v Napster, Inc., 239 F.3d 1004 (9th Cir 2001). See e.g. Metro-Goldwin-Mayer Studio’s, Inc. v Grokster Ltd., 545 U.S. 913, 930 (U.S. 2005). 195 See, e.g. Figure 1. 196 See, e.g. comments by Pallante. Sandoval, above n16. 197 See, e.g. comments by Rick Carnes, Ibid. 198 Ibid.


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Any proposal for change will need to demonstrate to Congress that considerable pain is being suffered by

the US citizen, otherwise it is likely that it would suffer the same fate of failure and for similar reasons as

seen in Eldred.199

Conclusion

This paper has looked at the issues created in copyright law that have been highlighted by the new abilities

for almost anyone to create, copy and distribute copyrighted works using the new technologies provided

by the internet and associated technologies.

The removal of prerequisite formalities, when linked to automatic subsistence, duration, technological

protection measures, and unclear limitations have been said to damage the volume of works available in

the public domain for the cultural development of future works. This is because it is difficult to identify

owners, understand what is fair use, and remove technological measures even for fair use.

The opposing side of the argument is that the provisions already in the copyright act enable fair use,

providing adequate cultural benefit, but also protect the private rights of owners from infringement in their

works. They suggest that the two-tiered formalities system when linked with copyright and para-

copyright is functioning satisfactorily.

The current proposals were considered to see if there is likelihood that Congress would consider

introducing the changes, but it was discovered that there are some fundamental issues likely preventing

opt-in and opt-out systems in copyright law. Conversely, use of para-copyright was seen as able to

overcome those issues and provide similar benefits as it sits parallel to copyright law.

Finally, it seems that even though the reintroduction of a formalities system has some merits, the most

likely scenario is that the situation will remain the same and wait for naturally occurring legal and market

adjustments, unless significant damage to the US citizen can be demonstrated.

199 Lessig, above n56, 236-239.


22

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A Articles / Books / Reports

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Commons’ (2010) 20 Fordham Intellectual Property, Media and Entertainment Law Journal 373

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24

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B Cases

A&M Records, Inc. v Napster, Inc., 239 F.3d 1004 (9th Cir 2001)

Campbell v Acuff-Rose Music, 510 U.S. 569 (1994)

Dellar v Samuel Goldwyn, Inc., 104 F.2d 661 (2d Cir. 1939)

Eldred v Ashcroft, 537 U.S. 186 (2003)

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Feist Publications, Inc. v Rural Telephone Service Co., 499 U.S. 340 (1991)

Harper & Row, Publishers, Inc. v Nation Enterprises, 471 U. S. 539 (1985)

Lexmark International, Inc. v Static Control, Inc., 387 F.3d 522 (6th Cir. 2004)

Los Angeles Times v Free Republic, 2000 U.S. Dist. Lexis 5669 (C.D. Cal. March 31, 2000)

Metro-Goldwin-Mayer Studio’s, Inc. v Grokster, Ltd., 125 S. Ct. 2764 (2005)

Metro-Goldwin-Mayer Studio’s, Inc. v Grokster Ltd., 545 U.S. 913, 930 (U.S. 2005)


25

Radio Television Espanola v New World Entertainment, 183 F.3d 922 (9th Cir. 1999)

Scorpio Music, et al. v Willis, 11 Civ. 1557 (BTM), 2012 WL 1598043 (S.D.Ca. May 7, 2012)

The Chamberlain Group, Inc. v Skylynk Tech., Inc., 381 F.2d 1178 (FED.Cir. 2004)

Twentieth Century Music Corp. v Aiken 422 U.S. 151 (1975)

Universal City Studios v Chorley 273 F.3d 429 (2d Cir. 2002)

Warner Bros. Entertainment, Inc. and J. K. Rowling v RDR Books 575 F.Supp.2d 513 (SDNY 2008)

C Legislation

Copyright Act 1976 (U.S.), codified as 17 U.S.C.

Copyright Act of May 31, 1790, ch. 15, 1 Stat. 124 (1790) (U.S.)

Digital Millennium Copyright Act 1998 (U.S.)

H.R. Report No. 94-1476, 94th Cong., 2d Sess. (1976) (U.S.)

United States Constitution art I § 8

Unlocking Technology Act of 2013, 113th Cong., 1st Sess. (2013) (U.S.)

D Treaties

Berne Convention for the Protection of Literary and Artistic Works, as amended on September 28 1979,

art 5

World Intellectual Property Organisation Copyright Treaty, adopted in Geneva on December 20, 1996

E Other

A Brief History of the PC, (29 August 2013) Policy Vol. 21 No. 3, 35

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Krotoski

Computer History Museum, Linus Torvalds (3rd September 2013)

<http://www.computerhistory.org/fellowawards/hall/bios/Linus,Torvalds/>


26

Greg Sandoval, ‘The head of the Copyright Office says the law is broken: but can she fix it in time?’, The

Verge (online), 20th March 2013 < http://www.theverge.com/2013/3/20/4126936/copyright-register-today-

will-embark-on-mission-to-overhaul-us>

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<http://www.economist.com/debate/overview/144>

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<http://www.copyright.gov/circs/circ01.pdf>

us copyright, the internet, and the dilemma of formalities

Documents