The Return of Copyright Registration?

"Bring back registration as a requirement for obtaining copyright protection." It's a suggestion that's been floating around quite a bit lately. Suggested by panelists at the Leadership Digital Music Seminar and rumored to being contemplated in Europe, registration is often touted as a great solution to many of the current copyright ills.

How is registration supposed to help?

Orphan Works: those pesky little pieces of art left wrapped in a blanket on your door step. Actually, orphan works are works for which it is very difficult or impossible to find the copyright owner. This is a huge problem for those who focus on licensing works. In order to license a work, the licensee (usually*) must contact and negotiate with the copyright owner. If the copyright owner cannot be found, no license.

The Copyright Office would, through registration, have a database of every copyrighted piece of work and each work's respective copyright owner(s). Potential licensee's could contact the database and easily find out who they needed to see to obtain a license.

Not Everyone Wants Their Works Copryighted: Everyday people post their own photos, stories, and videos to the internet. These creations, at the moment they were fixed in a tangible medium of expression, are copyrighted in the US and most** of the world. But a lot of these authors do not really care if their video of Fluffy chasing a squirrel or their photo of dinner is protected. They have posted these items to share them.

Because all the individual works posted to the internet are covered by copyright, the websites that host the works must include complicated licenses in their Terms of Service. Chances are, most of the users of these sites do not read the Terms of Service, and even if they did, they probably wouldn't understand what the licenses mean.

Requiring registration would result in only authors who really cared about having copyright protection on their works bothering to register. The internet sites would not need the complicated Terms of Service, and others who wanted to use works found on the internet would be able to know if they could use the works without a license.

Problems with registration

International Obligations: The Berne Convention is an old international agreement covering intellectual property. Most of the world is subject to its provisions because of its incorporation in TRIPs, the intellectual property part of the World Trade Organization (WTO) agreement. Article 5 of Berne says that copyright protection "shall not be subject to any formality." Registration is a formality.

The first big problem with requiring registration for copyright protection is that any country implementing this requirement would be violating the WTO agreement (via TRIPs and Berne) and thus subject to be sued in the WTO by other countries. Not fun. Before countries can seriously consider requiring registration for copyright protection, the WTO must adjust the international rules.

Value of the work: Authors' creations are not like other goods. They do not have an innate value. Authors do not immediately know how much they works are worth, particularly authors just starting out. There are many reasons an author might not register every work created. If a work an author has not register becomes a big hit, the author has no right to it, because it was not registered. If every author registers every work out of fear that an unregistered work could become a hit, the copyright office will be inundated with registrations. (And the authors will be very broke.)

Not everyone can register: Many of the creators posting content to the internet are not adults. Some of these young creators produce valuable work. But how likely is it that they'd be able to register their works with the copyright office? "Mommy, can I have an advance on my next 3 months' allowances so I can register my video at the copyright office?" Doubtful.

Registration often sounds like the great copyright solution savior, but it has issues. In the future, we'll take a look as some other options for the problems registration is supposed to solve.

*Some works are covered by compulsory licenses and managed by collecting societies.

**Some countries, like Germany, do not require fixation for a work to be copyrighted. Some countries may require more than just completing the work.

***Note: the US does have some registration requirements for bringing infringement suits, but not for securing copyright.