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August 27, 2004
Reform(aliz)ing Copyright, Part II
The very fine weblog writer & copyfighter Joe Gratz favors us with a clear, succinct executive summary of Chris Sprigman's Reform(al)izing Copyright [PDF], a forthcoming Stanford Law Review article that proposes to restore the traditional balance to copyright law by bringing back copyright formalities that have all but entirely disappeared. Interestingly enough, these formalities will be "voluntary" -- but if you don't participate, a default license kicks in.
According to Joe, this paper, along with the aforementioned article by Judge Posner and William Patry, "lays the foundation for a new battle in the copyfight, focusing not on the optimal length of the copyright term but on the optimal set of conditions a copyright system should demand of parties claiming exclsuive rights." We've only just begun to explore this particular avenue of post-Eldred strategy.
Snippet (emphasis, mine):
[These] formalities weren't just annoying ministerial requirements, traps for the unwary included for the sake of tradition. They were smart economics. They caused works to exit copyright's system of exclusive rights when the economic value of that exclusivity was exhausted.
So, Sprigman asks, what can we do now? The Berne Convention, to which the United States acceded soon after its elimination of formalities, prohibits formalities as a condition for copyright protection. We can't just reinstate formalities going forward. Sprigman sees renewal as the most obviously economically important formality; exclusive rights that are economically worthless to the rights-holder but potentially valuable to other parties are a dead-weight loss to society. Sprigman proposes a system of "new-style formalities" voluntary notice, registration, deposit, and renewal. If a copyright holder decided to opt out of the system of voluntary formalities, their work would be subject to a "default license." The license fee, payable from the user to the copyright holder, would be set such that the full cost of compliance and the full cost of noncompliance are roughly equal.
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