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William Fisher, CopyrightX: Lecture 6.1, The Mechanics of Copyright: The Decline of Formalities

William Fisher, CopyrightX: Lecture 6.1, The Mechanics of Copyright: The Decline of Formalities


Hello, I’m Terry Fisher. This is the sixth of 12
lectures on copyright. I’ll be examining today
the mechanics of copyright, in other words, the way in which the
machinery of the copyright system works in practice. As usual, I’ll devote
most of my attention to how the US Copyright system works. Indeed, of the 12
lectures in this series, this is the one that pays
especially close attention to the idiosyncrasies of the
law in the United States. However, I will identify
along the way some respects in which the copyright systems
of other countries differ. And more importantly, I will emphasize
the broad policy questions implicated by the US rules, policy questions
that are pertinent to all countries. Also as usual, I will be
supplementing my presentation with various audiovisual
materials, which are best seen by watching the lecture
on a computer or a device with a reasonably large screen. One source of those
supplementary materials will be a map of copyright law,
the current version of which can be downloaded from my home page,
the address of which is tfisher.org. The machinery of the copyright
system is intricate, surprisingly so. I will not attempt today
to catalog all its details. Instead, I will concentrate on three
important dimensions of this machine– first, the roles played by formalities;
second, the rules governing how long copyrights last, and
third, the aspects of the system that attempt to protect vulnerable
artists and their families from exploitation. We’ll begin with formalities. Until quite recently, the United States,
unlike most countries in the world, extended copyright
protection only to authors who had complied with some
administrative requirements known as formalities. These administrative requirements
were not especially burdensome, but they were important. Indeed, failure to
observe them could result in permanent forfeiture
of one’s copyright. In the late 20th century, most
of these formal requirements were eliminated, not all
at once, but in stages. The result is, that since 1989, the
copyright system of the United States has been, in this respect, very
similar to the copyright systems in most other countries. During this segment
of the lecture, I will describe how those formal
requirements once worked and the process by
which they were largely, although– as we’ll see–
not completely abandoned. A threshold question–
if these formalities have been more or less eliminated,
why do we need to discuss them? There are two answers to that question. First, as you’ll soon see,
many of the copyrights that remain commercially valuable
in the United States were born during eras in which the
formalities were still in force, and the abolition of the
formalities was not retroactive. As a result, the legal status
today of many copyrighted works depends upon the capacity
of the putative owner to demonstrate that the formal
requirements were once upon a time appropriately observed. In short, the formalities
still matter in practice. The second reason is that,
as you will also see, many scholars today believe that the
abolition of formalities was a mistake and that the copyright system
did function and would function much better if at least some
formalities were reinstated. Indeed, these scholars
argue, all countries should revive some variant of the model
that once existed in the United States. Examining the history of
formalities in the United States will help us to assess that
important policy argument. With those two considerations
in mind, let’s turn to the law. The slide on your screen summarizes
the changing status in US law of the three most important formalities. I hasten to add that this
chart is not comprehensive. It focuses on, as I say, the
most important requirements. If you’re hungry for more
information on the subject, follow the branch of the map that
summarizes the history of formalities. You’ll find they are linked
to an excellent article by Professor Jane Ginsburg. On pages 13 and 14 of
her article, you’ll find a chart that contains much more
detail than the one on your screen. So with that cautionary note,
let’s focus on the main themes. To make sense of this field, you
need to differentiate three eras in the legal history of copyright in the
United States– the period between 1909 and the end of 1977; the period between
January 1, 1978 and February 28, 1989; and the period between March
1, 1989 and the present. The first of these eras
was governed by the 1909 version of the Federal
Copyright Statute. The event that separated the
first from the second era was a comprehensive reform of that
statute, which was adopted in 1976 but only became effective
at the start of 1978. The event that separated the
second from the third era was the effective date of the
statute, that as we have seen earlier, altered US law enough
to enable the United States to join the Berne Convention. We could, of course, look
farther back in time than 1909. But no copyrights governed by pre-1909
statutes are still alive today, so we won’t. During the first of these eras,
there were three main formalities. Most important, and for
authors, the most dangerous was the notice requirement. When you first published
your work, you had to notify the world that you
were claiming copyright in it, or you forfeited your rights. The statute was quite precise
concerning the content and placement of that notice. For example, if you
published a novel, you had to place the notice on the
title page or the following page. You had to use the word copyright
or any abbreviation thereof, such as the now famous
c within a circle. And you had to indicate the
date of the publication. Here, for example, is the
second page of an edition of Gone with the Wind by Margaret
Mitchell, a very popular novel that we will discuss
later in this course. The crucial material is indicated here. You might wonder, why is
the copyright asserted by McMillan rather than by Mitchell? And what’s the purpose of the
language highlighted on your screen? We’ll address those issues shortly. Now back to the chart– as I
say, if you published your work without appropriate notice, you no
longer enjoyed copyright protection. This requirement corresponded to
and reinforced the distinction, during the era governed
by the 1909 statute, between state and federal
copyright protection. Here’s how that distinction
worked in practice. When you first created your
work– let’s assume it’s a novel– you acquired a copyright but not a
copyright recognized and enforced by federal statutory law. Rather, you enjoyed a copyright
recognized and enforced by state common law. If you never published your
novel, that common law protection would last indefinitely. But if you published your novel, your
common law protection evaporated. From that point forward, you got
copyright protection under federal law, if at all. This is the moment when the
notice requirement took hold. If you published the novel
without the requisite notice, you forfeited federal
protection permanently. As a result, the novel fell into the
public domain, the set of materials that anyone can use freely. The metaphor of falling is interesting. Why didn’t the novel rise
into the public domain? There are various possible
explanations for this terminology– perhaps because the public
domain was thought of as debased, perhaps because it was analogized
to the Lockian untilled field, perhaps because it was thought
of as a reservoir, like water, of raw materials. Not clear, but almost certainly, the
metaphor of falling had, and still has, power. Back to our story– if by
contrast, you or your publisher attached to all copies of the
published book the requisite notice, then you did acquire federal
copyright protection, but it did not last forever. Rather, it lasted for an
initial term of 28 years. When that term ended,
the novel again fell into the public domain, unless you, or
as we’ll see, a member of your family renewed the copyright, in which
case, it would enjoy protection for a second 28-year term, whereupon
it would finally and permanently fall to the public domain. Thereafter, anyone could
use it, copy it, publish it, read it aloud in a public
park, and so forth. For the most part, the system worked
just fine for sophisticated novelists, like Margaret Mitchell, and
publishers, like McMillan. They were aware of the statutory
requirements, and complying with them was not hard. But less sophisticated players or the
creators of less-conventional works sometimes neglected the notice
requirement, and as a result, lost copyright protection permanently. The courts, sympathetic to the plight
of these unsophisticated players, begin to tinker with this
legal regime, in order to reduce the frequency of forfeitures. They couldn’t, of course, ignore the
statutory requirement altogether. Instead, they began
to construe the term, quote, “publication,” close quote,
in a way that helped 90% of authors. They were able to do
so because the statute itself did not to find
the term publication, but left that up to the courts. Seizing that opportunity,
the courts differentiated two kinds of publication– so-called
limited publication, which would not trigger the notice requirement,
and so-called general publication, which did. The courts then defined
general publication narrowly, to exclude lots of
things we would actually associate with the term publication. For example, they held that
making and distributing a sound recording of
a musical composition did not result in publication
of the composition and that giving a public lecture did not
result in publication of the lecture, unless you passed out unrestricted
copies of the text to your audience. Here’s an important and illustrative
case, the outcome of which hinged on this counterintuitive
definition of publication. On August 28, 1963, the Southern
Christian Leadership Conference organized a march in Washington, DC in
support of the civil rights movement. Roughly 200,000 people gathered on
the mall at the center of the city. The march culminated with a
speech by Dr. Martin Luther King Jr, the founder and president
of the Leadership Conference. The latter portions of
his speech contained some of the most moving and justly
famous lines in US political history. Here are a few. “I have a dream that my four children
will one day live in a nation where they will not be judged
by the color of their skin, but by the content of their character. I have a dream that one day the state
of Alabama, whose governor’s lips are presently dripping with the words
of interposition and nullification, will be transformed into a situation
where little black boys and black girls will be able to join hands with
little white boys and white girls and walk together as
sisters and brothers.” As I say, roughly 200,000
people heard this speech live, and millions more saw it on television. Roughly a month afterward, it apparently
occurred to King, or his advisers, that he ought to enjoy a
copyright in the speech and that other people
should have to pay him, if they wished to sell
copies the speech. So on September 30, 1963, King
filed for copyright registration and duly received a certificate
of registration on October 2. He then initiated an infringement
suit against unauthorized seller and prevailed. It’s probably occurred
to you that there’s an important policy issue lurking here. Should political speeches be
subject to copyright protection? In the United States, so
long as their authors are not officials of the federal government,
they are protected by copyright. And Dr. King and his estate
have enforced their copyrights in his speeches and letters fiercely. I leave to you the question of
whether giving King and his estate this power makes sense on the basis
of any of the theories of copyright we’ve considered thus far
in this lecture series. But our primary concern today is not
with that important policy issue, but with of question of formalities. For decades, no one seems to
have challenged King’s copyright in the “I Have a Dream” speech. Then, in 1994, CBS produced
a documentary series on 20th century US history. One segment of one episode in
that series focused on the March on Washington. In it, CBS showed roughly
60% of King’s speech. CBS did not, before making
the film, ask permission and did not pay the
customary license fee. CBS’s estate predictably
brought suit against CBS. CBS’s main line of defense was that
King, and subsequently his estate, lacked copyright protection, because
King had published the speech in August of 1963 without the
statutorily required notice. There’s no question that King had not
given any kind of copyright notice when he delivered the
speech on the mall. So the only issue, at least during
the preliminary round of litigation, was whether making the speech
before a nationwide audience constituted publication. The trial court concluded,
yes, and thus that King had forfeited copyright protection. But the Court of Appeals for
the 11th Circuit concluded, no. A general publication, the
court ruled, occurs only in two situations– first,
when tangible copies of a work are distributed to the general
public in such a manner as to allow the public to exercise
dominion and control over those copies; and second, when the work
is exhibited and displayed in a way that invites unrestricted
copying by the general public, for example, by publicly displaying
a sculpture without any restrictions on the freedom of
viewers to photograph it. At the stage of the litigation
in which this issue arose, CBS had not yet established that
King had done either of those things when he delivered the speech. So he did not forfeit
his copyright in it. So CBS, as a result, had to obtain
a license from King’s estate, if CBS wished to broadcast it. This case illustrates a couple things–
on one hand, the crucial importance during this first year of
the notice requirement; and on the other hand, the willingness
of some courts in borderline cases to construe the term publication
in a way that avoided forfeiture. So that’s the first of
the three main formalities that governed US
copyright law until 1978. After that date, the requirement
was softened considerably. Between 1978 and 1989,
failure to attach notices to copies at the time of
registration was not fatal, so long as you made an effort to cure
the problem within five years. In 1989, the notice
requirement was eliminated as a precondition for
copyright protection. Although, as we’ll see
in the 12th lecture, a failure to attach
appropriate notices may limit the amount of statutory damages
you can collect from infringers. Remember, however, that these
changes were not retroactive. So in the King case, the fact
that the CBS documentary was not made until the 1990s did not mean that
the notice requirement was irrelevant. Because the speech was
made and published in 1963, the 1909 statutory
requirements still applied and continue to apply
today to pre-1978 works. The second of the three formalities
is also illustrated by the King case. Registering your work
with the Copyright Office was not a prerequisite
to copyright protection. But you could not bring an infringement
suit prior to registration, nor could you renew the copyright. That’s the reason King sought
and obtained registration before filing his initial suit. In 1978, the renewal system,
as we’ll see, disappeared. But registration remained necessary
if you wanted to bring a lawsuit. An additional incentive
for registration was added, namely that you couldn’t recover
statutory damages or attorney’s fees for infringements that
began prior to registration. In 1989, registration
ceased to be a precondition for initiating a lawsuit with
respect to works first published outside the United States. But it’s still remained
so for so-called US works. The softest and least
important of the formalities was the requirement that authors
deposit two copies of their works with the Library of Congress
within three months of publication, basically, in order to help the
library build its collection. Failure to comply exposed
you to escalating fines. If after being notified by the Copyright
Office you still refuse to comply, you could forfeit your copyright,
although this seems to have been rare. Forfeiture was eliminated
as a sanction in 1978, and that regime
continues to the present. So that, in brief, was how the
US system of formalities worked and how it has been radically cut back. As we’ve seen, the system
had two unfortunate effects. First, it sometimes resulted
in inattentive authors losing their copyright
protection altogether. Second, it tended to benefit
sophisticated parties and institutions and to disadvantage authors and others
less aware of the rules of the game. However, in its heyday,
the system of formalities also had two important
beneficial social functions. First, the registration requirement
facilitated socially beneficial licenses and assignments. Suppose you encountered
a copyrighted work and wanted to use it for some purpose. For example, you came
upon a sound recording you wanted to include in
a film or an article you wanted to include in an anthology. If the copyright in the recording or
article has been properly registered, you were more likely to be able
to locate the copyright owner and thus obtain a license than
if had not been registered. Viewed from this angle, however,
the system was far from perfect, because as we’ve seen, lots of
work still in there first term had not been the subject of litigation
and thus were still unregistered. And yet, the copyrights
in them were valid. The second of the two
beneficial social functions was advanced more
effectively by this regime. The notice requirement had the effect
that many works, specifically all works published without the proper
notice, fell into the public domain. Arguably, this was
desirable, both by increasing the set of materials from which
future authors could draw freely and by giving all authors an easy way
of dedicating their works to the public. If you didn’t want to assert
a copyright, all you had to do was publish your work
without a copyright notice. Some evidence that these functions
were indeed being advanced can be gleaned from
data compiled by Chris Sprigman in his pioneering
article on copyright formalities. The slide in front of you,
taken from Sprigman’s article, shows the number of copyright
registrations each year, from 1909 through the
end of the century. As you can see, it begins at
about $100,000 per year and peaks at around 600,000. That might seem like a large number. But it’s a tiny percentage of the set
of potentially copyrightable works. Another feature of the system
reinforced this effect. As you’ll recall, the
original 1909 regime did not give authors a
copyright lasting 56 years, but rather gave them an initial
term of 28 years plus an option to renew for another 28 years. If they failed to exercise
that option, their works fell into the public domain. And most authors did indeed fail,
as this chart, also from Sprigman, demonstrates. It shows the fraction of
works originally registered that were renewed when the
time came for renewal arrived. As you can see, that percentage begins
around 5% and rises to only around 20%. In other words, the large
majority of registered works were not renewed and thus went out
of copyright after only 28 years, thus contributing to the
public domain reservoir. The general principle
underlying the system is that copyright was an opt-in regime. If you wanted a copyright, you had
to affirmatively acquire and keep it. If you didn’t, you lost it. By contrast, the current US
regime and the copyright regimes in virtually all other
countries is an opt-out system. Copyright protection, as we’ve
seen, arises automatically. If you don’t want a copyright
in one of your works, you have to act affirmatively to give
it up, and it’s not easy to do so. Graphically, this difference
can be characterized as follows. This, as you now know, is
the original 1909 system. By contrast, this is
how things work today. As soon as you create a work– more
specifically, as soon as you fix it in a tangible medium of expression–
federal copyright protection automatically arises. You don’t need to wait
until publication. And protection lasts not for
20 years or even 56 years, but for your lifetime plus
an additional 70 years. Somewhere along this timeline,
you or your heirs or devisees may publish the work. And as we’ll see, publication
has some important legal effects, particularly if it’s a work for hire. But publication does not alter
the existence of the copyright. When the term expires, the work will,
as usual, fall into the public domain. But that won’t be until
long after you’re dead. Before then, it’s possible
to give up your copyright by dedicating to to the public domain. But that, as I say, is hard and rare. The result, as I’ve
indicated previously, is that billions of creative
works throughout the world are now subject to copyright protection. But the absence of an
effective registration system often makes it difficult to locate
the owners of those copyrights and thus to obtain
permission to make otherwise proscribed uses of those works. The result is needless
impediments to cumulative or derivative artistic progress. What might be done to alleviate
this problem, without, of course, corroding the rights of
the artists and authors who do want and depend upon copyright? There at least three possibilities. First, and most radically, we might
repudiate the provision of the Berne Convention that forbids making
compliance with formalities a condition of acquiring or exercising copyrights
and then, country by country, reinstate systems of formalities. That might well be socially
desirable, but it’s very unlikely. Second, we might increase the
incentives for voluntarily complying with formalities, in particular
for registering one’s copyrights. As I’ve said, there already exists
some incentives for registration. For example, registered copyrights
enjoy a modest presumption of validity. And as we’ve seen in the United
States, statutory damages are not available when unregistered
copyrights are infringed. But we might amplify the
benefits of registration, perhaps by further
increasing the remedies available to the owners
of registered works. Alternatively, we might make a failure
to register more costly, perhaps by expanding the set of
exceptions and limitations applicable to unregistered works. But in so doing, we’d need to be
mindful of the constraints imposed by the so-called three-step
test contained in the Berne Convention and the TRIPS Agreement,
which I discussed in the first lecture. The third of the three
possible responses would be to provide a mechanism that
makes it easier for authors and artists to donate some or all
of their entitlements to the public– to make, in other words,
a credible and enforceable announcement to the world that they will retain
and exercise only some of the rights that the copyright system
automatically confers upon them. That’s basically the idea
behind Creative Commons, the brainchild of Larry Lessig. Creative Commons makes
available to copyright owners a set of standardized licenses that
they can grant to the public at large by attaching appropriate notices
to copies of their creations. As we saw in the King case,
attaching a copyright notice to copies of one’s work
was once essential, if one wanted copyright protection. The Creative Commons
notices do the opposite. They signal to the world that
the copyright owner wishes to give up some or all of the rights
he or she acquires automatically. The following short video
from Creative Commons itself shows how these notices work. [BEGIN VIDEO PLAYBACK] When you share your creativity,
you’re enabling people anywhere to use it, learn from it,
and be inspired by it. Take the teacher, who shapes
young minds with work and wisdom from around the globe; and the
artist, who breeds beauty out of bits and pieces she finds online;
and the writer, whose stories use ideas and images crafted by
people he’s never even met. These people know that when
you share your creative wealth, you can accomplish great things. They and millions of other
people all around the planet are working together to build a
richer, better, more vibrant culture, using Creative Commons. To understand Creative Commons,
you need to know a little bit about how copyright works. Did you know that when you
create something, anything from a photograph to a song to
a drawing to a film to a story, you automatically own and all rights
reserved copyright to that creativity. It’s true. Copyright protects your creativity
against uses you don’t consent to. But sometimes full
copyright is to restrictive. What about when you want all those
millions and millions of people out there to use your work without the
hassle of coming to you for permission? What if you want your
work to be freely shared, reused, and built upon
by the rest of the world? Luckily, there’s an
answer– Creative Commons. We provide free copyright licenses
you can use to tell people exactly which parts of your copyright
you’re happy to give to the public. It’s easy. It only takes a minute. And it’s totally free. Just come on our website and
answer a few quick questions like– will you allow
commercial uses of your work? And will you allow your
work to be modified? Based on your answers,
we’ll give you a license that clearly communicates what people
can and can’t do with your creativity. You don’t give up your copyright. You refine it, so it
works better for you. Welcome to a new world
where collaboration rules. It didn’t even exist
just a few years ago. But now there are millions
and millions of songs, pictures, videos, and written
works available to share, reuse, and remix, all for free. Want to work together? Then join the commons–
Creative Commons. [MUSIC PLAYING] [END PLAYBACK] If you’re persuaded by this video and
follow the narrator’s instructions to go to the Creative
Commons website, you will find there six
main licensing options which give you and other authors
of a variety of sets of rights that you and they may decide
to retain or surrender. In addition to the six
licenses listed on your screen, Creative Commons makes
available to copyright owners a standardized notice
known as CC0, that they can employ to give up all of their
rights– in other words, as I’ve said, to donate their works
to the public domain. An important footnote– as you
know by now, in some countries, authors enjoy some non-waivable
moral rights, in other words, entitlements that they cannot give up. In those countries, use
of the CC0 label may not be fully effective or
at least not permanent. That troubling possibility
has not yet been tested. But this label, CC0, provides authors
an easy way to give up as many rights as they can. In terms of our schematic
characterization of the copyright system, here’s what CC0 enables. The current regime, as you’ll
recall, works like this. CC makes it easier for
copyright owners to opt out of some more or all of their
rights, in other words, to do this. That advantage of Creative Commons,
as compared to the other two ways of tempering the unfortunate
side effects of our current lack of formalities, is that
it in no way undermines the right of copyright owners who
want to retain all of their rights. It is this optional feature that
prompted Jack Valenti, the former head of the Motion Picture
Association of America and a staunch defender of copyright,
to endorse Creative Commons. [BEGIN VIDEO PLAYBACK] I’m glad to be here via this video. I wish I could be there in person. But I wanted to say just few words
about Larry Lessig’s concept of Creative Commons. I’m attracted to it for
the following reasons. First, Larry makes it clear
that he is respectful of and supports copyright– copyrighted
material that artists create. And he believes it
ought to be protected. But he also says, and
I agree, that there are those people who have
copyrighted material who may want to give up part of
their copyright or all of it, to put on the Creative Commons and
let other people view it or hear it or whatever. And I have no problem with that. I think that’s part of the free
and society in this country, that if you want other
people to have your material you have created free of charge
with your permission, wonderful. And I find that to be a
salutary kind of thing. But I think it’s also important,
as Larry staunchly believes, that those people who have
copyrighted material– whether it be in a book or a television
program or home video or music or movie or computer software–
and who want it protected, so that they can make sure that it can move
through the various venues where that material is
brought to the public and given to consumers at fair and
reasonable prices. [END PLAYBACK] The disadvantage of Creative Commons is
that the majority of copyright owners do not and will not use it, either
because they were unaware of it, don’t understand it, or simply
don’t want to give up any rights. Creative Commons thus
mitigates the troubling impact of our lack of formalities, but
certainly doesn’t eliminate them. What else might we do
without sacrificing the clear benefits of
our current regime? I’ll leave that to your
imagination and deliberation.

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