The Return of Copyright Registration?

29 March 2009

"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.

Comments

4 Responses to “The Return of Copyright Registration?”
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Don said...

"Not Everyone Wants Their Works Copyrighted"

Thanks, but I disagree.

Everyone should care about their copyright. This is a huge failure of education by the Copyright Office. The many people who share their photos/art on the internet will want to control how that content is used even if there is no profit derived from it. Would you want a photo of your daughter's head pasted into an "obscene" photo on a porn site?

The recent attempt at Orphan Works "reform" nearly passed without a single vote of Congress. This would have allowed anyone to harvest these so-called "orphans" referred to above, and use them for any commercial purpose. A bad idea for everyone, except the large stock image libraries and the porn industry.

So, if you are intimating that copyright is somehow a burden, I disagree. It is a right that everyone should get involved with and manage. Lawrence Lessig is just plain wrong on this topic.

To keep abreast of your rights, I'd suggest bookmarking this site, because a new "orphan works" bill will be coming soon, and it may not be pretty:
http://illustratorspartnership.org/

Thanks.

March 30, 2009 at 10:03:00 AM PDT
goldenrail said...

Don, Thanks for your comment.
Whether people want their works copyrighted, and whether they should are two different things. The fact is there are people who don't care about copyright protection on their works. You are probably correct that most people would not want their daughter's head pasted onto some porn, but copyright law is not the appropriate way to protect against that. There are other better laws. (If copyright law were the only way, then anyone could follow your daughter, take her picture - thus owning the copyright, and put it on some porn.)

I'm not sure what you are referring to when you say "Lessig is just plain wrong on this topic." Especially since you and he seem to share the same relief that the last attempt at orphan works reform failed. I'd like to hear more on your thoughts, if you're willing to share.

And just to clarify, I do not think copyright is a burden. I think reintroducing a registration requirement for copyright protection is a huge step with a lot of issues that its proponents have not thought through (or at least not addressed.)

Thanks for the link.

March 30, 2009 at 10:24:00 AM PDT
gypsy07 said...

Dear "goldenrail",

People cannot use the likeness of another person without their release (unless perhaps it was for the news). So your example of taking a picture of someone's daughter and using it without consent doesn't hold water. Copyright does protect the person who was photographed.

Thank you for your interest in this topic!

Best,
"gypsy07"

March 30, 2009 at 6:29:00 PM PDT
dtrizzle said...

Gypsy07,

You are mistaken. Copyright does not protect likeness. See 17 U.S.C. 102, which lists the subject matter that copyright can protect. Likeness is not listed. However, one’s likeness is protected by state tort law. For example, see NY Civil Rights Law Section 50 - 51 and Cal. Civil Code Section 3344 (but the law is different from state to state).

In the above example of cut and pasting a woman face onto a pornographic image would likely be actionable under the above statutes, a common law “false light” or “right of publicity” theory, or maybe under the Lanham (Trademark) Act, if the woman was famous. However, the person taking the picture would be the sole owner of the copyright, assuming he was not working for someone else. See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884) (originator of a photograph may claim copyright in his work).

Therefore, while there may be a number of issues with the above cut and paste example, copyright would not be one of them.

March 30, 2009 at 8:47:00 PM PDT