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Samuelson Post-Meeting Comments DEPARTMENT OF COMMERCE United States Patent and Trademark Office National Telecommunications and Information Administration Docket No. 130927852-3852-01 Comments of Pamela Samuelson in Response to the Department of Commerce Internet Policy Task Force’s Green Paper, Copyright Policy, Creativity, and Innovation in the Digital Economy on Incentives for Copyright Registration & Recordation The Internet Policy Task Force asked for public comments on various copyright policy issues in Appendix A to its Green Paper on “Copyright Policy, Creativity, and Innovation in the Digital Economy,” among them, whether the government should “[p]rovid[e] enhanced incentives for using public registration and recordation systems administered by the Copyright Office” (p. 103). This written Comment explains why such enhanced incentives are needed and offers some concrete suggestions for how the goal of increasing registration and recordation might be accomplished. It also provides a summary of presentations about copyright registration and recordation made at a conference hosted by the Berkeley Center for Law and Technology on “Reform(aliz)ing Copyright” in April 2013. I. Existing Incentives to Register and Record Are Insufficient Under the Copyright Act of 1976 (“1976 Act”), registration of copyright claims and recordation of transfers of copyright are voluntary acts. There are, however, some incentives to register and record. The availability of awards of statutory damages and attorney fees for successful plaintiffs depend on registration under 17 U.S.C. sec. 412, and U.S. authors cannot sue for infringement unless they have registered their claims of copyright with the U.S. Copyright Office under 17 U.S.C. sec. 411. The 1976 Act creates incentives for recordation through priority rules when conflicting transfers exist. Over time, it has become apparent that these incentives are not as effective as Congress may have hoped. Only a small percentage of eligible works of authorship are registered with the Copyright Office, and very few transfers are recorded.1 1 The U.S. Copyright Office registered approximately 670,000 works of authorship in fiscal year 2011 and recorded 10,298 transfer documents. See ANNUAL REPORT OF THE REGISTER OF COPYRIGHTS at 22-23 (2011). The Office has recognized that it is important to “[i]ncreas[e] participation in the national registration and recordation systems” as “an important national objective.” See U.S. COPYRIGHT OFFICE, PRIORITIES AND SPECIAL PROJECTS OF THE UNITED STATES COPYRIGHT OFFICE OCTOBER 2011‒OCTOBER 2013 (2011), available at www.copyright.gov/docs/priorities.pdf. See also WILLIAM PATRY, HOW TO FIX COPYRIGHT 103‒05 (2011) (noting historically low registration and renewal rates); DEBORAH TUSSEY, COMPLEX COPYRIGHT: MAPPING THE INFORMATION ECOSYSTEM 84 (2012) (“Using copyright registrations as a proxy for copyrighted works produced . omits the undoubtedly large number of works that are created, but never registered.”). 1 The paucity of registrations and recordations is especially unfortunate because of the difficulties prospective users have in discerning who owns what copyright interest in which works and how to contact the proper rights holder in order to obtain a license. Increasing incentives for registration and recordation is a modest measure that the government can take that would improve the market for licensing copyrighted works. Advances in information technologies should have made it easier than ever before to register and record, but this potential has not yet been achieved. II. Copyright Principles Project Recommended Reinvigoration of Copyright Formalities In 2007, I convened a group of twenty copyright professionals to discuss whether and in what ways U.S. copyright law was in need of reform. We, the members of the Copyright Principles Project (CPP), met regularly for three years and produced a report recommending consideration of twenty-five possible reforms.2 The first two recommendations concerned ways in which copyright registration could be improved: Recommendation #1: Copyright law should do more to encourage copyright owners to register their works so that better information will be available as to who claims copyright ownership in which works. … The vast majority of copyrighted works created each year have little or no commercial value. Billions of works, such as emails and business memos, are created without the incentive of copyright and lack independent commercial value as expressive works. Many other works that people create, such as blog posts, are subject to copyright, although their authors intend to distribute them without restraint or with fewer restraints than the default rules of copyright impose. Many works are created with the intent to exploit their commercial value as expression, but lack that value at inception or perhaps enjoy evanescent commercial value that endures for a much shorter period than the current copyright term. These types of works are similar in one important respect. They are not producing revenues. For this reason, continued copyright protection serves no real economic interest of the author. Copyright does not, of itself, create commercial demand for protected works. In a deformalized, opt-out copyright system, commercially “dead” works cannot safely be reused as building blocks for potentially valuable new works. The costs of locating the rights holder and obtaining permission will often be prohibitively expensive. In such instances copyright is unbalanced: its potential benefits are absent or depleted, and it therefore imposes only social costs. To respond to the overly expansive copyright regime now in place, there emerged 2 See Pamela Samuelson & Members of the CPP, The Copyright Principles Project: Directions for Reform, 25 BERKELEY TECH. L.J. 1175, 1198 (2010). 2 strong interest within the CPP group for “reformalizing” copyright law. Copyright law should not just re-introduce the formalities from the past. However, a more robust registration system would be desirable. Non-compliance with this registration procedure would not, as in the past, consign a work into the public domain. Instead, it would affect the rights and/or remedies available to the rights holder, so as to reduce certain liability risks for reusing unregistered works. The law presently does this in part by making the availability of statutory damages and attorney fee awards dependent on prompt registration, but this inducement to registration has not sufficed.3 … Recommendation #2: The Copyright Office should transition away from being the sole registry for copyrighted works and toward certifying the operation of registries operated by third parties, both public and private. … The basic idea would be to shift the Copyright Office away from day-to-day operation of the copyright registry and toward a role of setting standards for and superintending a system of separate but networked and interoperable private registries. The first step would be to authorize the Copyright Office to set standards for acceptable private registries—i.e., both technical standards and also specifications determining what kinds of copyright information a compliant registry must and may ask for from users and place into its database. The Office would need to be empowered to make sure any private registry meets important public interest requirements regarding transparency and efficient searches through multiple services, so as to minimize burdens on both copyright owners and users on accessing the data and benefits of these services. Once these standards are established, the Copyright Office could accept applications from firms seeking to operate as private registries and would certify that private registries (of many different types) meet and continue to adhere to the registry standards. The end result, if this task is done properly, would be an environment in which private firms compete to obtain copyright registration information from rights holders. Competition should lead to lower costs and innovations in registry design. And if the registries operate according to compatible technical standards, user searches for copyright information will be able to draw upon the data stored in all of the networked private registries. The result would be a system that is in reality decentralized but that is architected and managed to provide a “search once, search everywhere” experience to users. The model is similar to the domain name registration system, where multiple private parties provide services and 4 access to the database of domain names. 3 Id. at 1198-99. 4 Id. at 1203-04. 3 In my remarks made at the Department of Commerce Public Meeting on the Green Paper on December 12, 2013, I recommended that a feasibility study be undertaken to explore how this idea might be implemented. I reaffirm that recommendation in this Comment. III. Ideas for Reform(aliz)ing Copyright Were Presented at Berkeley Conference In April 2013, the Berkeley Center for Law & Technology co-hosted a two-day conference entitled “Reform(aliz)ing Copyright for the Internet Age.” 5 Drawing over 130 participants, several from countries outside the United States, the conference provided a comprehensive overview of the past, present, and future of formalities and explored an internationally acceptable framework for the reintroduction of copyright formalities. Academics and other stakeholders were invited to consider, among other things, the useful role that formalities can play in addressing today’s copyright challenges, what kinds of formalities
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