Abstract:
For nearly two centuries, US copyright law relied on statutory formalities to balance the public interest with the interests of copyright holders. These formalities historically included affixing a copyright notice to the work and registering the work with the government. An author was required to publicly claim her work or else the work was freely available for others to use. Yet over the past thirty years, Congress has progressively rolled back copyright formalities. Today, neither registration nor notice is required for copyright to protect a work for seventy years after the author’s death. And by affording expansive protection to unclaimed works, we have created a number of related problems. First, we have a growing orphan works problem where the copyright holder is unknown. Second, we have more works in the private domain, which has depleted the public domain from which other creators can draw. And third, the transaction costs to identify ownership and copyright status have thwarted socially beneficial uses of these works. But there is no doctrinal reason to exempt an author from publicly claiming a statutory right. Copyright holders, not the public, should bear the cost of notice failure.
As a solution, I propose that a copyright holder should claim an interest in her original work of authorship. If a copyright holder fails to claim an interest in her work, a user would be allowed to raise an innocent infringer defense. With this innocent infringer defense, the chilling effect and risks associated with using unclaimed works would be ameliorated. This proposal arguably complies with our international obligations under the Berne Convention. And there are a host of advantages that flow from requiring a copyright holder to claim her work. These advantages include a workable solution to the orphan works problem, functional replenishment of the public domain, and decreased transaction costs to license works.
Reid, Amanda, Claiming the Copyright (August 14, 2015). Yale Law and Policy Review, forthcoming.
First posted 2015-09-08 06:05:45
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