Reform(aliz)ing copyright

Stanford Law Review

Volumn 57, Issue 2, 2004, Pages 485-568

  Sprigman, Christopher ^a  

^a STANFORD LAW SCHOOL   (United States)

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EID: 33645766303     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (321)

1. See, e.g., Brief of Amici Curiae George A. Akerlof et al., Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618) [hereinafter Economists' Brief]; WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF INTELLECTUAL PROPERTY LAW 210-53 (2003).
2. See, e.g., Richard A. Epstein, The Dubious Constitutionality of the Copyright Term Extension Act, 36 LOY. L.A. L. REV. 123 (2002);
3. Tyler T. Ochoa, Patent and Copyright Term Extension and the Constitution: A Historical Perspective, 49 J. COPYRIGHT SOC'Y U.S.A. 19 (2001);
4. Shira Perlmutter, Participation in the International Copyright System as a Means to Promote the Progress of Science and Useful Arts, 36 LOY. L.A. L. REV. 323 (2002).
5. See, e.g., LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE (1999);
6. James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 LAW & CONTEMP. PROBS. 33 (2003).
7. See, e.g., LAWRENCE LESSIG, FREE CULTURE (2004) [hereinafter LESSIG, FREE CULTURE];
8. LAWRENCE LESSIG, THE FUTURE OF IDEAS (2001);
9. Tom W. Bell, Indelicate Imbalancing in Copyright and Patent Law, in COPY FIGHTS 1 (Adam Thierer & Clyde Wayne Crews eds., 2002);
10. Robert P. Merges, One Hundred Years of Solicitude: Intellectual Property Law 1900-2000, 88 CAL. L. REV. 2187 (2000);
11. R. Polk Wagner, Information Wants to Be Free: Intellectual Property and the Mythologies of Control, 103 COLUM. L. REV. 995 (2003).
12. See Eldred v. Ashcroft, 537 U.S. 186 (2003); Complaint, Kahle v. Ashcroft, No. C04-01127 (N.D. Cal. filed Mar. 22, 2004), available at http://cyberlaw.stanford.edu/about/ cases/Civil%20Complaint%203-22-04.pdf (last visited Oct. 4, 2004) [hereinafter Kahle Complaint];
13. First Amended Complaint, Golan v. Ashcroft, No. 01-B-1854 (D. Colo. filed Feb. 18, 2003), available at http://cyberlaw.stanford.edu/about/cases/Amended%20 Complaint.pdf (last visited Oct. 4, 2004).
14. Pub. L. No. 94-553, 90 Stat. 2541 [hereinafter 1976 Act].
15. Pub. L. No. 100-568, 102 Stat. 2853 [hereinafter BCIA].
16. This Act is part of the larger Copyright Amendments Act of 1992. See Copyright Amendments Act of 1992 §§ 101-102, Pub. L. No. 102-307, 106 Stat. 264, 264-66 (1992) [hereinafter CAA].
17. Pub. L. No. 105-298, 112 Stat. 2827 (1998) [hereinafter CTEA].
18. 17 U.S.C. § 102 (2000).
19. See infra text accompanying notes 43-58.
20. Epstein, supra note 2, at 124.
21. See, e.g., 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 17.01[B][1][a] (2004) (observing that Berne's "enlightened approach to copyright protection is notable for its antipathy to formalities");
22. Jane C. Ginsburg & John M. Kernochan, One Hundred and Two Years Later: The U.S. Joins the Berne Convention, 13 COLUM.-VLA J.L. & ARTS 1, 38 (1988) (listing, among benefits of Berne accession, elimination of "barbaric forfeitures for lapses in formalities").
23. But see LESSIG, FREE CULTURE, supra note 4, at 250 ("Rather than abandoning formalities totally, the response [of the Berne drafters] should have been to embrace a more equitable system of registration.").
24. See Berne Convention for the Protection of Literary and Artistic Works, Paris Act, July 24, 1971, 25 U.S.T. 1341, 828 U.N.T.S. 221 [hereinafter Berne Convention]. All citations in this Article to the Berne Convention are to the Paris Act unless otherwise noted. The Paris Act, to which the United States acceded on March 1, 1989, is the currently effective text of the Berne Convention.
25. Id. art. 3(1).
26. Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, LEGAL INSTRUMENTS - RESULTS OF THE URUGUAY ROUND vol. 31, 33 I.L.M. 81 (1994) [hereinafter TRIPs].
27. TRIPs Article 9 incorporates Articles 1-21 of the Berne Convention, with the exception of Article 6bis (which concerns moral rights).
28. See supra text accompanying note 10.
29. Act of May 31, 1790, ch. 15, 1 Stat. 124 (1790) [hereinafter 1790 Act].
30. U.S. CONST. art. I, § 8, cl. 8. This clause is often referred to as the Patent Clause, the Copyright Clause, or the Intellectual Property Clause. Although the term "intellectual property" was unknown at the time of the Constitution's framing, and although the concept of intellectual property covers more ground than just patents and copyrights, I have chosen the third formulation to refer to the congressional power in this clause, because it is the only formulation that captures both types of exclusive rights authorized in the clause.
31. 1790 Act, supra note 19, § 1. The 1790 Act gave authors no exclusive right to derivative works, or to public performance or display of their works.
32. Id.
33. Id. § 3.
34. See William J. Maher, Copyright Term, Retrospective Extension, and the Copyright Law of 1790 in Historical Context, 49 J. COPYRIGHT SOC'Y U.S.A. 1021, 1023 (2002). Interestingly, Maher's examination of bibliographic records from the period 1790 to 1800 reveals that only twelve works subject to preexisting state copyright law were reregistered under the 1790 Act - a tiny fraction (1.74%) of the works registered during that period. Id. at 1025. Moreover, at the time of their reregistration, only three of the works dated from before 1784. Id. Although nine of the twelve states that had copyright laws prior to 1790 required works to be registered as a condition of protection, most of the state registration records from this period have been lost, so it is impossible to say how many works were registered under state copyright and were eligible for reregistration under the 1790 Act.
35. See G. Thomas Tanselle, Copyright Records and the Bibliographer, 22 STUD. BIBLIOGRAPHY 77, 82-84 (1969). Nonetheless, the very low absolute number of works reregistered following the 1790 Act (i.e., reregistration of works that were previously subject to state copyrights that were preempted by the 1790 Act) is consistent with much more expansive recent data, discussed infra at text accompanying notes 124-134, showing that copyrighted works have, on average, a short commercial life before their value is fully depreciated.
36. 25. 1790 Act, supra note 19, § 3.
37. Act of Apr. 29, 1802, ch. 36, 2 Stat. 171 (1802).
38. Id. § 1.
39. Id.
40. 1790 Act, supra note 19, § 4. Responsibility for accepting registration and deposit was later moved to the Librarian of Congress. See Act of July 8, 1870, ch. 230, §§ 85, 109-110, 16 Stat. 198, 212, 215 (1870).
41. 1790 Act, supra note 19, § 1.
42. Act of Feb. 3, 1831, ch. 16, 4 Stat. 436 (1831) [hereinafter 1831 Act].
43. Act of Mar. 4, 1909, ch. 320, 35 Stat. 1075 (1909) (repealed 1976) [hereinafter 1909 Act].
44. 1831 Act, supra note 31, § 16.
45. Id. §§ 3-5.
46. Id. § 2.
47. Act of June 30, 1934, ch. 157, 4 Stat. 728 (1834).
48. Id.
49. 1909 Act, supra note 32, § 1.
50. Id. §§ 1, 19-21.
51. Id. § 24.
52. Id. § 23.
53. The 1909 Act allowed protection to attach upon "publication of the work with the notice of copyright," id. § 12, so following 1909 it was publication with notice, rather than registration, that served as the formality that gave rise to copyright. Following publication, however, the Act required that the author "promptly" deposit copies of the work with the Copyright Office, id. § 13, and, although the statute is not clear on this point, Professor Nimmer has noted that authors were required to submit an application for registration along with the deposit. 2 NIMMER & NIMMER, supra note 13, § 7.16[A][2][b]. Rightsholders were barred from bringing a lawsuit for infringement of the copyright until they had complied with the registration and deposit formalities. 1909 Act, supra note 32, § 12. In addition, the Register of Copyrights was authorized to make a demand for deposit; failure to promptly comply (within three months from any part of the United States except for "outlying territorial possessions," and within six months from anywhere else) would result in fines and the voiding of the copyright. Id. § 13.
54. 17 U.S.C. § 410(c) (2000).
55. Id. § 411.
56. See Final Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention, 10 COLUM.-VLA J.L. & ARTS 513, 572-73 (1986) [hereinafter Final Report].
57. 17 U.S.C. § 412 (2000).
58. See, e.g., id. § 401(d).
59. Id. § 205(c). The law continues to require deposit, but punishes failure to comply with a fine, rather than with forfeiture of the copyright. Id. § 407(d).
60. LANDES & POSNER, supra note 1, at 236.
61. Id. at 235.
62. See A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896, 925 (N.D. Cal. 2000) (recounting record companies' contention that "it would be burdensome or even impossible to identify all of the copyrighted music they own"), aff'd in part, rev'd in part, 239 F.3d 1004 (9th Cir. 2001).
63. See Harry Fox Agency, Inc., HFA Is Looking for These Publishers, at http://harryfox.com/public/infoUpdateList.jsp (last visited Oct. 30, 2004).
64. LANDES & POSNER, supra note 1, at 212 (explaining results of study).
65. See infra p. 501.
66. 17 U.S.C. §§ 302-304 (2000 & Supp. II 2002).
67. These graphs are, like Figure 1, drawn from LANDES & POSNER, supra note 1, at 236, and are based on Copyright Office data collected by those authors.
68. CAA, supra note 8, § 102.
69. That renewals did not fall to zero is due to provisions of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057 (1993), and the Uruguay Round Agreements Act (URAA) § 514, Pub. L. No. 103-465, 108 Stat. 4809, 4976 (1994), which together restored the copyright of certain foreign works that had fallen into the public domain for failure to comply with mandatory formalities. These foreign works are restored "for the remainder of the term of copyright that the work would have otherwise been granted in the United States if the work never entered the public domain in the United States." 17 U.S.C. § 104A(a)(1)(B) (2000).
70. See James Gilreath, Editor's Preface to FEDERAL COPYRIGHT RECORDS 1790-1800, at ix, ix (James Gilreath ed. & Elizabeth Carter Wills compiler, 1987).
71. See Maher, supra note 24, at 1024 n.8. Using additional information obtained from ROGER BRISTOL, SUPPLEMENT TO CHARLES EVANS' AMERICAN BIBLIOGRAPHY (1970), about the number of works published in the United States, and correcting for duplicate copyright registrations in Gilreath's records, Maher arrives at a larger number of published works (20,829) and a smaller number of copyright registrations (684).
72. Gilreath, supra note 59, at ix; Maher, supra note 24, at 1023-27. Further, in relying on the number of total texts found in CHARLES EVANS, AMERICAN BIBLIOGRAPHY (1941), Maher is repeating some instances where Evans double-counted and included foreign texts.
73. The recent online version of American Bibliography (available at http://infoweb.newsbank.com to users with a password), which includes the supplement to American Bibliography (a password-protected description of which is available at http://infoweb.newsbank.com/iw-search/we/Evans/?p_action=help), provides a lower total number for texts produced in 1790-1800 (12,303) than Maher's.
74. There is some anecdotal evidence that the percentage of published works subject to copyright remained low, although probably not as low as at copyright's inception. In a 1961 report to Congress, the Register of Copyrights stated that "most of the great mass of published material" did not bear a copyright notice, indicating that many authors were simply not interested in securing copyright at all. HOUSE COMM. ON THE JUDICIARY, 87TH CONG., REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW 62 (Comm. Print 1961);
75. see also H.R. REP. NO. 94-1476, at 143 (1976) (explaining that the copyright notice requirement serves four principal functions: "(1) It has the effect of placing in the public domain a substantial body of published material that no one is interested in copyrighting; (2) It informs the public as to whether a particular work is copyrighted; (3) It identifies the copyright owner; and (4) It shows the date of publication.").
76. I received invaluable assistance from Joe Gratz and Darien Shanske in conducting historical research for this Article. Though the discussion of our findings makes reference to the author in the singular, this stylistic convention is adopted to ensure clarity and ease of reading, and not to suggest that the author conducted the research independently.
77. This was done in FEDERAL COPYRIGHT RECORDS 1790-1800, supra note 59.
78. See ALICE D. SCHREYER, THE HISTORY OF BOOKS: A GUIDE TO SELECTED RESOURCES IN THE LIBRARY OF CONGRESS 94 (1987).
79. The estimate is from Martin A. Roberts, Records in the Copyright Office of the Library of Congress Deposited by the United States District Courts, 1790-1870, 31 PROC. BIBLIOGRAPHICAL SOC'Y AM. 81, 94 (1937) .
80. It is cited as authoritative by SCHREYER, supra note 65, at 90; see also U.S. COPYRIGHT OFFICE, 106TH ANNUAL REPORT OF THE REGISTER OF COPYRIGHTS FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 2003, at 62 n.1 (2003); Tanselle, supra note 24.
81. Roberts, supra note 66, at 87, 92.
82. For 1801 through 1819, there is AMERICAN BIBLIOGRAPHY: A PRELIMINARY CHECKLIST (Ralph R. Shaw & Richard H. Shoemaker compilers, 1958).
83. For 1819 through 1846, there is A CHECKLIST OF AMERICAN IMPRINTS (Richard H. Shoemaker et al. compilers, 1964).
84. D.W. Krummel, Counting Every Star; or, Historical Statistics on Music Publishing in the United States, 10 ANUARIO INTERAMERICANO DE INVESTIGACION MUSICAL 175, 182 (1974).
85. Because this figure includes some registrations for prints, maps, and photographs in the numerator, but does not include any provision for these works in the denominator, it overstates the rate of registration by some unknown, but likely small, amount.
86. The period between 1845 and 1857 is described as "the greatest boom the business had ever witnessed." 1 JOHN TEBBEL, A HISTORY OF PUBLISHING IN THE UNITED STATES 245 (1972). Between 1850 and 1870, the total value of all printing and publishing in the United States increased from $14,812,227 to $80,939,756. Downing Palmer O'Harra, Book Publishing in the United States 1860 to 1901, Including Statistical Tables and Charts to 1927, at 112 (1928) (unpublished M.A. thesis, University of Illinois) (on file with author) (citing the 1905, 1914, 1921, and 1925 editions of the U.S. Census Bureau's Census of Manufactures). Though these raw figures do not account for inflation and, as noted by O'Harra, collection methods probably improved over the period (further inflating the total growth), id. at 111, the overall trend is clear.
87. For information on texts, see A CHECKLIST OF AMERICAN IMPRINTS, supra note 68;
88. AMERICAN BIBLIOGRAPHY: A PRELIMINARY CHECKLIST, supra note 68; EVANS, supra note
89. For population and GDP information, see Louis D. Johnston & Samuel H. Williamson, Source Note for US GDP, 1789-2002 (2003), at http://www.eh.net/hmit/gdp/GDPsource.htm (last visited Sept. 9, 2004).
90. The information regarding U.S. GDP in Figure 5 comes from Johnston & Williamson, supra note 72.
91. Clarence Brigham, American Booksellers' Catalogues, 1734-1800, in ESSAYS HONORING LAWRENCE C. WROTH 31 (1951).
92. See Mifflin v. R.H. White Co., 190 U.S. 260 (1903); Holmes v. Hurst, 174 U.S. 82 (1899).
93. Evans lists newspapers and periodicals once for each year of publication, while Shaw and Shoemaker (1801-1819) list them only once and Shoemaker et al. (1820-1846) do not list periodicals at all. See A CHECKLIST OF AMERICAN IMPRINTS, supra note 68, at v;
94. AMERICAN BIBLIOGRAPHY: A PRELIMINARY CHECKLIST, supra note 68, at ix.
95. FRANK LUTHER MOTT, AMERICAN JOURNALISM 216 (rev. ed. 1950).
96. FRANK LUTHER MOTT, AMERICAN JOURNALISM 1950). Id.
97. Another source puts the total number of American periodicals in 1872 (just after the end of our period) at 8110. M.B. Iwinski, La Statistique Internationale Des Imprimés, BULLETIN DE L'INSTITUT INTERNATIONAL DE BIBLIOGRAPHIE 1, 66 (1911).
98. See A CHECKLIST OF AMERICAN IMPRINTS, supra note 68, at v.
99. Specifically, the Librarian complained in 1872 about the deposit of "printed labels, with or without pictorial embellishment, designed for use on cigar-boxes, patent medicines, and other articles of manufacture." ANNUAL REPORT OF THE LIBRARIAN OF CONGRESS EXHIBITING PROGRESS OF THE LIBRARY DURING YEAR ENDED DECEMBER 1, 1872, at 4 (1872). This is confirmed by Roberts, who attests to seeing records of "patent medicine labels, cigar-box linings, photographs, and all the other miscellanea which the copyright laws were called to protect." Roberts, supra note 66, at 92; see also Tanselle, supra note 24, at 86.
100. One contemporary source put the percentage of foreign works and reprints at 45% between 1830 and 1842 and 30% in 1853. NIKELUS TRÜBNER, TRÜBNER'S BIBLIOGRAPHIC GUIDE TO AMERICAN LITERATURE, at xxiii-iv (1855). Trübner's numbers for 1853 are cited without comment by Tebbel. 2 TEBBEL, supra note 71, at 23. Another contemporary source puts the percentage of foreign works in 1835 at about 40%; however, this source also states that in 1833 there were "one-third more foreign than original" books.
101. ROSALIND REMER, PRINTERS AND MEN OF CAPITAL 149 (1996)
102. (citing 2 BOOKSELLER'S ADVERTISER AND MONTHLY REGISTER OF NEW PUBLICATIONS AMERICAN AND FOREIGN 2 (1836)). Another contemporary source for the 1850s also apparently confirmed Trübner, finding percentages of original American titles to be roughly 61%, 58%, and 73% for the years 1853, 1854, and 1855, respectively.
103. See CLARENCE GOHDES, AMERICAN LITERATURE IN NINETEENTH-CENTURY ENGLAND 42 n.66 (1944)
104. (citing SAMPSON Low, THE AMERICAN CATALOGUE OF BOOKS vi (1856)). Certainly the trend was toward American authors; Tebbel summarizes as follows: The first half of the nineteenth century witnessed the steady swing away from British to American authors, notwithstanding the immense popularity of Scott and Dickens. In 1820, the ratio had been thirty American to seventy British; in 1856, it was eighty American to twenty British. While these figures may not be quite accurate, they disclose the trend unmistakably. 1 TEBBEL, supra note 71, at 221. Tebbel follows another contemporary source here, Goodrich, who states that the balance shifted toward American authors in the 1840s. 2
105. S.G. GOODRICH, RECOLLECTIONS OF A LIFETIME 389 (1856);
106. see also Aubert J. Clark, The Movement for Intellectual Copyright in Nineteenth Century America 38-39 (1960) (unpublished Ph.D. dissertation, Catholic University of America) (on file with author) (doubting that the percentage of American bestsellers that were pirated between 1800 and 1860 was as high as 50%). For the years 1890 through 1916, books by foreigners averaged 44% (for the twenty years that complete information was collected). 2 TEBBEL, supra note 71, at 710
107. (citing FRED E. WOODWARD, A GRAPHIC SURVEY OF BOOK PUBLICATION, 1890-1916 (U.S. Bureau of Educ., Bulletin No. 14, 1917)).
108. This was also confirmed by my inspection of all the California imprints calalogued in Robert Harlan, Printing for the Instant City: San Francisco at Mid-Century, in GETTING THE BOOKS OUT 137 (Michael Hackenberg ed., 1985). Only around one percent were of foreign origin. No doubt this number is lower than the number nationwide, as San Francisco publishers were clearly focused on providing works of local interest and many reprints appeared within periodicals.
109. Statistics provided by Professor Robert Harlan (July 28, 2004) (results of study examining San Francisco imprints from 1850 through 1870) (on file with author).
110. Harlan, supra note 82, at 154. Harlan adds that he doubts as many as one in four examples of job work (e.g., labels) published in San Francisco during the period has survived, even though the number of ephemera in his collection outnumbers books by over three to one. Id. at 145. The copyright registration records for California for the period 1851 through 1862 are available; these records indicate that only about 56% of all the works copyrighted in California for this period (293 items) were texts. CALIFORNIA IMPRINTS, 1833-1862, A BIBLIOGRAPHY 480-504 (Robert Greenwood ed., Seiko June Suzuki & Marjorie Pulliam compilers, 1961). Examples of job work copyrighted include labels for the "Eureka Compound for Fever & Ague" (1852) and "Fish's Infallible Hair Restorative" (1861), and a blank of a membership certificate from the Committee of Vigilance for San Francisco (1856). So a substantial amount of copyrightable work most likely has been lost and cannot be counted in the denominator of any registration rate calculation.
111. The percentage reflects 198 copyrighted items out of 1469 total copyrightable items. The figure for total copyrightable material is probably too low, as it was reached using very strict criteria to determine which items would have been copyrightable.
112. Interestingly, DeGroot's map of the Washoe Mines was registered (item #203, 1860).
113. For background information on Laurentine Hamilton, see First Unitarian Church of Oakland, Welcome to the First Unitarian Church of Oakland, at http://uuoakland.org/history.htm (last visited Oct. 31, 2004).
114. Charles Wadsworth, for instance, did not notice his many sermons when published as pamphlets, but his publisher, Anton Roman, did notice a collection of his sermons even though at least two (and probably most, if not all) of the sermons in the collection had already been published as pamphlets and were thus in the public domain.
115. A 1963 Practicing Law Institute monograph on copyright law by Barbara Ringer and Paul Gitlin was published without notice and immediately entered the public domain. See BARBARA A. RINGER & PAUL GITLIN, COPYRIGHTS (1963). Ringer was perhaps the person most familiar with copyright formalities at that time; when the book was published, she was Assistant Register for Examining at the U.S. Copyright Office. (She would later serve as Register of Copyrights between 1973 and 1980.) It is exceedingly unlikely that the chief examiner for the Copyright Office responsible for enforcing the notice formality mistakenly omitted notice from her own monograph on copyright law, and it is likely that many other such omissions were deliberate.
116. For example, the Marysville Directory for the Year 1855 is copyright noticed, but not registered, even though the same publisher's Directory for Sacramento for 1853-54 is registered. Also, LEWIS SHEARER, A DIGEST OF THE DECISIONS AND OPINIONS OF THE SUPREME COURT OF THE STATE OF CALIFORNIA (1859) is noticed, but not registered.
117. Statistics provided by Professor Robert Harlan (July 28, 2004) (on file with author). There are some more suggestive examples from Harlan's data of individuals making decisions regarding which works to notice. The California Immigrant Union copyright noticed its informational work entitled All About California, and the Inducements to Settle There (seventy-four pages, 1870),
118. but not its political works, such as Arguments in Favor of Immigration with an Explanation of the Measures Recommended by the Immigrant Union (twenty-six pages, 1870)
119. or Common Sense Applied to the Immigrant Question: Showing Why the "California Immigrant Union" was Founded and What It Expects to Do (sixty-four pages, 1869).
120. Jacob Leon Stone does not notice his Reply to Bishop Colenso's Attack upon the Pentateuch (one hundred eleven pages, 1863),
121. but does notice Slavery and the Bible; or Slavery as Seen in its Punishment (forty-eight pages, 1863).
122. In general, political statements were not noticed, which makes sense, since often the whole point was to publicize a point of view, often unpopular, such as George C. Bates's published speech entitled, Address of Geo. C. Bates, Esq., Which He Was Prevented from Delivering at Sacramento, on Saturday, April 19th, 1856, by a Mob.
123. For this survey I compared the records of the Bancroft Library with the published copyright records for 1908.
124. Harlan, supra note 82, at 162. This sample is much thinner, with a total of 105 copyrightable items.
125. The campaign was apparently successful, based on the later publication of another pamphlet, The William Buckley Case: Convicted of Murder and Sentenced to Be Hanged, Released from Prison by Governor Jas. M. Gillett on October 16, 1909 (1910). The Buckley case was not one of a simple murder but was connected with larger labor issues, as Buckley was accused of killing a strikebreaker.
126. Specifically, 4162 did not have a date, which is a conservative proxy for lack of notice (the presence of a date is not tantamount to notice). Based on a sample of fifty posters, we found no examples of a poster properly noticed without a date, though technically, post-1909, this would have been possible for some posters.
127. LANDES & POSNER, supra note 1, at 235. Landes and Posner note that another factor potentially contributing to the decline in registrations may be that "since 1989 registration has no longer been a condition for bringing an infringement suit for foreign works protected [under] the Berne Convention." Id. at 235 n.40. However, because foreign works constitute a small percentage of works registered in the United States, the total exemption of foreign works from voluntary registration is a relatively unimportant determinant of registration rates.
128. Note that the consequences of failing to register a copyright are more limited post-1976. Failure to register in the post-1976 unconditional regime does not move a work into the public domain, which raises the possibility that the decline in registrations after 1991 is the result of many rightsholders delaying registration until an infringement occurs. It is only after registering a work that a U.S. rightsholder may initiate an infringement suit. 17 U.S.C. § 411 (2000). However, failure to register at the work's inception still imposes a penalty: a rightsholder may recover neither statutory damages nor attorney's fees for the period of nonregistration. Id. § 412. Given the difficulty of proving actual damages in an infringement suit, and the possibility that infringement may go undetected for long periods, the rightsholder who waits until detecting infringement to register his work risks forfeiting a substantial share of the infringement damages he might have recovered had he registered at the beginning of the term. Accordingly, any rightsholder who, at the inception of a copyright term, forecasts a substantial net present value for his work is likely to register. Accordingly, the correlation between the post-1991 decline in registrations and the concomitant fee increases holds, even though registration no longer is equivalent to complete forfeiture of rights.
129. U.S. COPYRIGHT OFFICE, supra note 66, at 62.
130. U.S. COPYRIGHT OFFICE, 105TH ANNUAL REPORT OF THE REGISTER OF COPYRIGHTS FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 2002, at 8 (2002).
131. U.S. COPYRIGHT OFFICE, 104TH ANNUAL REPORT OF THE REGISTER OF COPYRIGHTS FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 2001, at 2 (2001).
132. If an author (or, perhaps more relevantly, a publisher) foresees little commercial value for a particular work, that work may be neither registered nor published, in which case the federal copyright term would not commence under pre-1976 law. See 1909 Act, supra note 32, §§ 10-11. Rather, the work would have been subject to perpetual common law copyright. However, under post-1976 rules, fixation in a tangible medium, not publication, is the trigger for copyright. See supra text accompanying note 10.
133. A weblog (sometimes shortened to "blog") is a website, usually of noncommercial origin, that uses a dated log format updated on a daily or very frequent basis to provide information about a particular subject or range of subjects. Weblog content may be written by the blog's owner, gleaned from other Internet or non-Internet sources, or contributed by users. A weblog may consist of the "postings" of the blog's owner, or may accept postings from users. For examples of popular weblogs, see Slashdot, at http://slashdot.org (last visited Sept. 9, 2004), a user-driven blog focused on issues of interest to the computer programming community, or TalkingPointsMemo, at http://talkingpointsmemo.com (last visited Sept. 9, 2004), a political weblog authored by Joshua Micah Marshall, a Washington, D.C., journalist.
134. Some weblogs do precisely that. See, e.g., Bag and Baggage, at http://bgbg.blogspot.com/ (last visited Oct. 11, 2004) (weblog of appellate and intellectual property lawyer Denise Howell). See infra text accompanying notes 115-123 for discussion of Creative Commons, an organization that has developed special licenses to allow the public free use of copyright-protected works.
135. For a large and diverse set of examples of uses of copyrighted material that might conceivably be deemed "fair" but have nonetheless drawn allegations of infringement and demands to cease and desist, see Electronic Frontier Found. et al., Chilling Effects Clearinghouse, at http://www.chillingeffects.org (last visited Sept. 9, 2004). The need for both would-be users and rightsholders to engage in expensive legal analysis of the four indeterminate factors that together comprise the statutory test for fair use, 17 U.S.C. § 107 (2000), is itself a cost imposed with significantly greater frequency in an unconditional copyright regime.
136. See ARTISTDirect, Inc., The Clique: Biography, at http://store.artistdirect.com/ music/artist/bio/0,,415704,00.html?artist=The+Clique (last visited Oct. 11, 2004).
137. 17 U.S.C. § 115 (2000). The compulsory license provision requires that notice be given to the licensor within thirty days of making the recording and before any distribution occurs. But, in a proviso that is especially relevant here, § 115(b)(1) provides that "[i]f the registration or other public records of the Copyright Office do not identify the copyright owner and include an address at which notice can be served, it shall be sufficient to file the notice of intention in the Copyright Office."
138. THORVALD SOLBERG, LIBRARY OF CONGRESS, REPORT ON COPYRIGHT LEGISLATION 25 (1904).
139. See, e.g., Copyright Law Revision: Hearings Before the Subcomm. on Patents, Trademarks, and Copyrights, 89th Cong. 68 (1965) (statement of Abraham L. Kaminstein, Register of Copyrights) ("The [1909 Act] contains a number of highly technical requirements concerning copyright notice, registration, and deposit, and the recording of assignments which are not only burdensome and difficult to understand but which, in too many cases, result in a complete loss of copyright protection.").
140. See LANDES & POSNER, supra note 1, at 238.
141. Internet Corp. for Assigned Names and Numbers, ICANN Information, at http://www.icann.org/general (last visited Sept. 9, 2004);
142. see also LESSIG, FREE CULTURE, supra note 4, at 288-89.
143. See generally Stargate.com Inc., Welcome to Stargate.com, at http://www.stargateinc.com (last visited Sept. 9, 2004).
144. See generally Network Solutions, Home, at http://www.networksolutions.com /en_US (last visited Sept. 9, 2004).
145. See LESSIG, FREE CULTURE, supra note 4, at 289.
146. See, e.g., Bell v. Combined Registry Co., 397 F.Supp. 1241 (N.D. Ill. 1975) (holding that a rightsholder had abandoned the copyright by authorizing others to use it without limitation and writing in his diary that it was a "gift" to the world), aff'd, 536 F.2d 164 (7th Cir. 1976).
147. Creative Commons, About Us, at http://creativecommons.org/learn/aboutus (last visited Sept. 9, 2004).
148. Creative Commons, Creative Commons Deed: Attribution 2.0, at http://creativecommons.org/licenses/by/2.0 (last visited Nov. 29, 2004).
149. Creative Commons, Creative Commons Deed: NonCommercial 1.0, at http://creativecommons.org/licenses/nc/1.0 (last visited Sept. 9, 2004).
150. Creative Commons, Creative Commons Deed: NoDerivs 1.0, at http://creativecommons.org/licenses/nd/1.0 (last visited Sept. 9, 2004).
151. Creative Commons, Creative Commons Deed: ShareAlike 1.0, at http://creativecommons.org/licenses/sa/1.0 (last visited Sept. 9, 2004).
152. Open Source Initiative, Open Software License v. 2.0, at http://www.opensource.org/licenses/osl-2.0.php (last visited Sept. 9, 2004).
153. Free Software Found., GNU General Public License, at http://www.gnu.org/licenses/gpl.html (last visited Sept. 9, 2004).
154. Creative Commons, Creative Commons Public Domain Dedication, at http://creativecommons.org/licenses/publicdomain (last visited Sept. 9, 2004).
155. Creative Commons, The Founders' Copyright, at http://creativecommons.org/ projects/founderscopyright (last visited Sept. 9, 2004).
156. Barbara A. Ringer, Renewal of Copyright, in 1 STUDIES ON COPYRIGHT 503, app. at 616-20 (Arthur Fisher memorial ed. 1963).
157. LANDES & POSNER, supra note 1, at 236.
158. "The renewal fee was $1 from 1909 to 1947, $2 from 1948 to 1965, $4 from 1966 to 1977, $6 from 1978 to 1990, $12 from 1991 to 1992, $20 from 1993 to 1999, and $45 from 2000 to the present." Id. at 212 n.8.
159. See supra text accompanying note 57.
160. See LANDES & POSNER, supra note 1, at 241-44.
161. Id. at 243.
162. Id. at 242.
163. Id. at 238-39.
164. Id. at 240.
165. Id.
166. See EDWARD B. RAPPAPORT, COPYRIGHT TERM EXTENSION: ESTIMATING THE ECONOMIC VALUES (Cong. Research Serv. Report 98-144E, 1998).
167. Under pre-1976 law, the longest duration for either the initial or renewal term was twenty-eight years. Accordingly, using a renewal rate of 15%, the average term of copyright equals (0.15 * 56) + (0.85 * 28).
168. Using the highest renewal figure of 22%, the calculation is (0.22 * 56) + (0.78 * 28).
169. See Economists' Brief, supra note 1, at 8.
170. I am indebted to Tim Phillips for pointing out to me just how odd an effectively perpetual term is given the Founders' very different conception of an appropriate term. Correspondence between Madison, who crafted the Intellectual Property Clause, and Jefferson suggests that the Founders thought of the proper length of a limited copyright term in quite specific actuarial terms. Having resigned himself to the inclusion of a clause authorizing Congress to create copyrights and patents - a power he initially opposed as liable to lead to the creation of dangerous "monopolies" - Jefferson proposed in a letter (posted from France) of August 28, 1789 that copyrights and patents be limited in duration to a fixed term of years. Letter from Thomas Jefferson to James Madison (Aug. 28, 1789), in 7 THE WRITINGS OF THOMAS JEFFERSON 444, 451 (Andrew A. Lipscomb & Albert Ellery Bergh eds., 1904). Several days afterward, in two letters dated September 6, 1789, Jefferson proposed a term of nineteen years, based on an actuarial calculation. In his first letter on that date, Jefferson framed the issue as follows: The question, whether one generation of men has a right to bind another, seems never to have been started on this [the European side] or our [American] side of the water. . . . [T]hat no such obligation can be so transmitted I think very capable of proof. I set out on this ground, which I suppose to be self evident, that the earth belongs in usufruct to the living; that the dead have neither powers nor rights over it.
171. Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in 7 THE WRITINGS OF THOMAS JEFFERSON, supra, at 454, 454 (emphasis in original). In an addendum to that letter, Jefferson reduced his principle to a concrete number: Buffon gives us a table of twenty-three thousand nine hundred and ninety-four deaths, stating the ages at which they happened. To draw from these the result I have occasioned for, I suppose a society in which twenty-three thousand nine hundred and ninety-four persons are born every year, and live to the age stated in Buffon's table. Then, the following inferences may be drawn. Such a society will consist constantly of six hundred and seventeen thousand seven hundred and three persons, of all ages. Of those living at any one instant of time, one half will be dead in twenty-four years and eight months. In such a society, ten thousand six hundred and seventy-five will arrive every year at the age of twenty-one years complete. It will constantly have three hundred and forty-eight thousand four hundred and seventeen persons of all ages above twenty one years, and the half of those twenty-one years and upwards living at any one instant of time, will be dead in eighteen years and eight months, or say nineteen years. Then, the contracts, constitutions and laws of every such society become void in nineteen years from their date.
172. Letter from Thomas Jefferson to Dr. Gem (Sept. 6, 1789), in 7 THE WRITINGS OF THOMAS JEFFERSON, supra, at 462, 462-63. The same computation using life tables from 1992 yields a Jeffersonian copyright term of between thirty and thirty-five years.
173. See 2 U.S. DEP'T OF HEALTH AND HUMAN SERVICES, VITAL STATISTICS OF THE UNITED STATES 1992: MORTALITY, pt. A, § 6, tbl.6-1 (1996).
174. See generally Justin Hughes, The Philosophy of Intellectual Property, 77 GEO. L.J. 287 (1988);
175. Carla Hesse, The Rise of Intellectual Property, 700 B.C.-A.D. 2000: An Idea in the Balance, DAEDALUS, Spring 2002, at 26.
176. See, e.g., 1 PAUL GOLDSTEIN, COPYRIGHT § 1.13.2.3 (2d ed. 2004).
177. For a more fully developed account of the benefits and costs of copyright, see Linda R. Cohen & Roger G. Noll, Intellectual Property, Antitrust and the New Economy, 62 U. PITT. L. REV. 453 (2001).
178. For factual background, see First Amended Complaint, Online Policy Group v. Diebold Inc., No. C 03-04913 JF, 2004 WL 2203382 (N.D. Cal. Sept. 30, 2004), available at http://www.eff.org/legal/ISP_liability/OPG_v_Diebold/First_Amended_Complaint.pdf (last visited Sept. 9, 2004).
179. Pub. L. No. 105-304, 112 Stat. 2860 (1998). The DMCA provides a "safe harbor" provision as an incentive for ISPs to take down user-posted content when they receive cease-and-desist letters such as the ones sent by Diebold. 17 U.S.C. § 512(c) (2000). By removing the content, or forcing the user to do so, for a minimum of ten days, an ISP can immunize itself from any copyright claim. 17 U.S.C. § 512(g)(2)(C).
180. Online Policy Group v. Diebold Inc., No. C 03-04913 JF, 2004 WL 2203382 (N.D. Cal. Sept. 30, 2004), available at http://cyberlaw.stanford.edu/about/cases/20040930_ Diebold_SJ_Order.pdf (last visited Nov. 11, 2004).
181. Note that under the pre-1976 regime, where federal copyright commenced upon "publication" and perpetual common law copyright applied to unpublished works, Diebold's unpublished corporate memoranda would likely have been subject to common law copyright, and Diebold would still have had a powerful copyright lever. (I say "likely," rather than "certainly," because the pre-1976 rules determining what constituted "publication" - the trigger that terminated state common law copyright and moved a work into the federal system - were the subject of substantial debate and confusion. See William S. Strauss, Protection of Unpublished Works, in 1 STUDIES ON COPYRIGHT, supra note 124, at 189, 198-205. In contrast, under a reformalized version of our post-1976 system, where federal copyright arises upon fixation, documents like the Diebold memoranda would seldom enter the copyright system.
182. See, e.g., Religious Tech. Ctr. v. Netcom On-Line Communication Servs., Inc., 923 F. Supp. 1231 (N.D. Cal. 1995) (holding that copyright could be used to prevent distribution of Church of Scientology materials).
183. See generally Jed Rubenfeld, The Freedom of Imagination: Copyright's Constitutionality, 112 YALE L.J. 1 (2002) (limning copyright's conflicts with the First Amendment and suggesting limitations to constitutionalize copyright).
184. Eldred v. Ashcroft, 537 U.S. 186, 220 (2003).
185. 17 U.S.C. § 1201 (2000).
186. See Universal City Studios, Inc. v. Corley, 273 F.3d 429, 458-59 (2d Cir. 2001).
187. See LANDES & POSNER, supra note 1, at 58-60 (providing examples of transformative use of preexisting materials in the works of Shakespeare, Yeats, and Eliot, among others).
188. See 2 GOLDSTEIN, supra note 140, § 7.2.1.2.
189. Id. § 7.4.1.1.
190. Graham v. John Deere Co., 383 U.S. 1, 5 (1966).
191. Edward C. Walterscheid, To Promote the Progress of Science and Useful Arts: The Anatomy of a Congressional Power, 43 IDEA 1 (2002).
192. Id. at 7.
193. See, e.g., DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD, 1789-1801, at 93 (1997) (arguing that the Intellectual Property Clause confers "not a general power to 'promote the progress of science and the useful arts,' but only the power to grant limited exclusive rights in order to accomplish that goal").
194. 537 U.S. 186, 212 (2003) (quoting Graham, 383 U.S. at 6).
195. Compare Schnapper v. Foley, 667 F.2d 102, 112 (D.C. Cir. 1981) (concluding that introductory language does not limit congressional power), and Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852, 860 (5th Cir. 1979) (same), and 1 NIMMER & NIMMER, supra note 13, § 1.03 (arguing that the promote progress phrase "is in the main explanatory of the purpose of copyright, without in itself constituting a rigid standard against which any copyright act must be measured"), with Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (suggesting, in dicta, that the promote progress language may inform the meaning of otherwise ambiguous statutory language: "When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of [its] basic purpose.").
196. See Graham, 383 U.S. at 5-6 ("Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose."); Great Atl. & Pac. Tea Co. v. Supermarket Equip. Corp., 340 U.S. 147, 154 (1950) (Douglas, J., concurring) ("Congress acts under the restraint imposed by the statement of purpose in Art. I, § 8.").
197. For a comprehensive summary of the natural rights, utilitarian, communitarian, and other theories of intellectual property, see Justin Hughes, The Philosophy of Intellectual Property, in INTELLECTUAL PROPERTY: MORAL, LEGAL, AND INTERNATIONAL DILEMMAS 107 (Adam D. Moore ed., 1997).
198. 33 U.S. (8 Pet.) 591, 657 (1834); cf. Jane C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 147 REVUE INTERNATIONALE DU DROIT D'AUTEUR 125, 141-47 (1991) (tracing mix of utilitarian and authors' rights motivations in early development of both U.S. and French copyright laws).
199. 33 U.S. (8 Pet.) at 619.
200. Id. at 668.
201. Id. at 625.
202. Id. at 634-35.
203. Id. at 657 ("The argument that a literary man is as much entitled to the product of his labour as any other member of society, cannot be controverted. And the answer is, that he realises [sic] this product by the transfer of his manuscripts, or in the sale of his works, when first published.").
204. Id. at 660-61.
205. Id. at 661.
206. Id.
207. Id. at 664-65.
208. Id. at 667.
209. Abraham Lincoln, Second Lectures on Discoveries and Inventions (Feb. 11, 1859), in 3 THE COLLECTED WORKS OF ABRAHAM LINCOLN 356, 363 (Roy P. Basler ed., 1953).
210. Stewart E. Sterk, Rhetoric and Reality in Copyright Law, 94 MICH. L. REV. 1197, 1203 (1996); cf. Mazer v. Stein, 347 U.S. 201, 219 (1954) ("Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.").
211. 334 U.S. 131, 158 (1948).
212. 347 U.S. at 219.
213. 464 U.S. 417, 429 (1984); see also Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) ("The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.").
214. H.R. REP. NO. 60-2222, at 7 (1909). Almost a century earlier, Thomas Jefferson expressed the same idea with characteristic felicity: If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. . . . Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.
215. Letter from Thomas Jefferson to Isaac McPherson (Aug. 13, 1813), in 13 THE WRITINGS OF THOMAS JEFFERSON, supra note 138, at 326, 333-34.
216. See generally LANDES & POSNER, supra note 1, ch. 15 (discussing the political economy of intellectual property law).
217. See 1 GOLDSTEIN, supra note 140, § 1.13.2.
218. Eldred v. Ashcroft, 537 U.S. 186, 221 (2003).
219. Id. at 213-14 (quoting Myers v. United States, 272 U.S. 52, 175 (1926)).
220. Id. at 200 (quoting New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921)).
221. Unfortunately, the Court's First Amendment logic is no better than its history. The Court errs by downplaying the First Amendment concern, stating that the inquiry is less exacting where "speakers assert the right to make other people's speeches," rather than their own. Id. at 221. But characterizing the claim as "a right to make other people's speeches" misses the core free speech issue posed by copyright extension. The Court frames the issue as focused on pure copying. Much more important is the right to engage in transformative use - i.e., to employ some elements of another's speech for the purpose of building one's own speech. This kind of appropriation and "remixing" is a common way that speech is constructed in our culture, but the Court's framing of the issue pretends that only copying, and not creativity, is at stake.
222. Kahle Complaint, supra note 5. The author is co-counsel for plaintiffs in this lawsuit.
223. See supra notes 33, 35 and accompanying text.
224. See supra text accompanying notes 38-42.
225. See 1976 Act, supra note 6, § 304.
226. CAA, supra note 8, §§ 101-102.
227. Eldred v. Ashcroft, 537 U.S. 186, 221 (2003).
228. See supra text accompanying notes 147-149.
229. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985).
230. The petitioners in Eldred argued that, unlike in the case of prospective term extension, extension of subsisting copyrights could not possibly contribute to increased incentive to invest in the creation of new works. Because existing works cannot be created anew, it makes no sense to throw additional money at owners of subsisting copyrights. The response of the Eldred majority to this commonsense observation is perhaps the weakest part of its opinion. Given Congress's repeated extensions of both new and subsisting copyrights, the Court asserted, authors could reasonably expect to receive "a copyright not only for the time in place when protection is gained, but also for any renewal or extension legislated during that time." 537 U.S. at 214-15. But given that the pre-CTEA copyright term of life of the author plus fifty years already provided a return to the rightsholder that approached one hundred percent of the net present value of a perpetual term, see supra text accompanying note 134, it makes no sense to maintain that extension of subsisting copyrights provides any additional inducement to authors.
231. See, e.g., Copyright Law Revision, supra note 108, at 68 (statement of Abraham L. Kaminstein, Register of Copyrights).
232. See Jane C. Ginsburg, International Copyright: From a "Bundle" of National Copyright Laws to a Supranational Code?, 47 J. COPYRIGHT SOC'Y U.S.A. 265, 267 (2000).
233. The Berne Convention has been revised repeatedly; particular revisions are referred to as "acts." The group of countries that are signatories
234. Berne Convention, supra note 14, art. 5(1). Under the Berne Convention's "points of attachment" rules, a work is entitled to Berne Convention protection in signatory nations if its author is a national or domiciliary of a signatory state or if the work is first or simultaneously published in a signatory state. See id. arts. 3(1)(a), 3(1)(b), 3(2).
235. Id. art. 7(1).
236. Id. art. 5(2).
237. Proclamation No. 3, 27 Stat. 981 (July 1, 1891).
238. Id.
239. Proclamation No. 24, 27 Stat. 1021 (Apr. 15, 1892).
240. Universal Copyright Convention, Geneva Text, Sept. 6, 1952, art. 3(2), 6 U.S.T. 2731, 2735, 216 U.N.T.S. 132, 136.
241. Graeme W. Austin, Does the Copyright Clause Mandate Isolationism?, 26 COLUM.-VLA J.L. & ARTS 17, 42 (2002).
242. Graeme W. Austin, COLUM.-VLA J.L. & ARTS 2002). Id. This "back door" to Berne has, since 1914, been subject to the power of Union members to retaliate against authors who are nationals of non-Union countries but obtain Berne protection through first publication in a Union country, if the author's country of nationality "fails to protect in an adequate manner the works of authors who are nationals of one of the countries of the Union."
243. Berne Convention, supra note 14, art. 6(1).
244. Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, art. 2(2),
245. reprinted in ARPAD BOGSCH, BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS, FROM 1886 TO 1986, at 228, 228 (World Intellectual Prop. Org. Public'n No. 877(E), 1986) [hereinafter BERNE CONVENTION FROM 1886 TO 1896].
246. Berne Convention for the Protection of Literary and Artistic Works, Berlin Act, Nov. 13, 1908, art. 4(2),
247. reprinted in BERNE CONVENTION FROM 1886 TO 1986, supra note 205, at 229, 229.
248. Berne Convention, supra note 14, art. 5(2).
249. WORLD INTELLECTUAL PROP. ORG., GUIDE TO THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS (PARIS ACT, 1971) 33 (1978) [hereinafter WIPO GUIDE];
250. see also SAM RICKETSON, THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS: 1886-1986, at 222-23 (1987).
251. See supra text accompanying notes 43-54.
252. See STEPHEN M. STEWART, INTERNATIONAL COPYRIGHT AND NEIGHBOURING RIGHTS 106 (1983) ("[T]he necessity to register before bringing an action would probably be regarded as a 'formality' as it negates the 'exercise' of the right without such registration.");
253. Mayer Gabay, The United States Copyright System and the Berne Convention, 26 BULL. COPYRIGHT SOC'Y U.S.A. 202, 208 (1979) ("It is true that registration is 'permissive' and does not, under the 1976 Act, constitute a condition precedent for acquisition of copyright. But these factors merely give rise to a bare right that is incapable of being exercised in a U.S. court of law until registration is effected.").
254. The fact that registration affords successful infringement plaintiffs the opportunity to collect statutory damages and attorney's fees, for example, is not believed to violate the Berne Convention, because that instrument does not itself require that a country provide for such recoveries. See Gabay, supra note 210, at 209-10; Melville B. Nimmer, Implications of the Prospective Revisions of the Berne Convention and the United States Copyright Law, 19 STAN. L. REV. 499, 514 (1967).
255. Berne Convention, supra note 14, art. 5(2).
256. WIPO GUIDE, supra note 208, at 33. WIPO, one of the sixteen specialized agencies of the United Nations system of organizations, is the principal forum for negotiation of international intellectual property agreements. Headquartered in Geneva, Switzerland, WIPO administers twenty-three international treaties dealing with different aspects of intellectual property protection. WIPO counts 179 nations as member states. For more information on WIPO's mission, see World Intellectual Prop. Org., Medium-Term Plan for WIPO Program Activities, at http://www.wipo.int/about-wipo/en/dgo/pub487.htm (last visited Oct. 31, 2004).
257. See supra note 81.
258. Berne Convention, supra note 14, art. 7(1); see also id. art. 7(2) (establishing for cinematographic works a minimum term of fifty years after publication, or, for unreleased films, fifty years after production); id. art. 7(3) (establishing for anonymous and pseudonymous works a minimum term of fifty years after publication); id. art. 7(4) (establishing for photographs and works of applied art a minimum term of twenty-five years following a work's production in countries that protect these types of works).
259. Alan Story, Burn Berne: Why the Leading International Copyright Convention Must Be Repealed, 40 HOUS. L. REV. 763, 771 (2003); see also Hesse, supra note 139, at 40 ("[Berne] tended to strengthen universalist claims for protection of inviolable natural rights against statutory limits imposed by particular nations on utilitarian grounds.").
260. The European Union required member nations to adopt a uniform life-plus-seventy term in a 1996 directive. Council Directive 93/98/EEC of 29 October 1993 Harmonizing the Term of Protection of Copyright and Certain Related Rights, 1993 O.J. (L 290) 9 [hereinafter EU Directive]. The EU Directive has now become the global benchmark. It was cited as a factor in the CTEA's installment of an identical term in U.S. law, see Eldred v. Ashcroft, 537 U.S. 186, 195-96 (2003), and is reflected in domestic legislation in a number of countries both within and outside Europe,
261. see Shauna C. Bryce, Life Plus Seventy: The Extension of Copyright Terms in the European Union and Proposed Legislation in the United States, 37 HARV. INT'L L.J. 525, 529 (1996).
262. See RICKETSON, supra note 208, at 41-42.
263. Id. at 42-43.
264. Id. at 201.
265. Id. at 46-47.
266. See supra text accompanying notes 205-206.
267. RICKETSON, supra note 208, at 202-03.
268. Id.
269. Id. at 201.
270. Id. at 85-86.
271. The North American Free Trade Agreement (NAFTA) also contains provisions related to intellectual property. See, e.g., North American Free Trade Agreement, Dec. 17, 1992, U.S.-Can.-Mex., arts. 1708 (trademark), 1709 (patent), 1710 (semiconductor design), 1711 (trade secrets), 32 I.L.M. 605, 672-75 (implemented by 107 Stat. 2057). In particular, NAFTA Article 1703(2) mirrors the Berne Article 5(2) proscription of formalities, and must likewise be modified to permit reformalization of domestic law in the United States. NAFTA Article 1703(2) provides that "[n]o Party may, as a condition of according national treatment under this Article, require rights holders to comply with any formalities or conditions in order to acquire rights in respect of copyright and related rights." Id. art. 1703(2). Since NAFTA signatories Canada, Mexico, and the United States are all parties to a text of the Berne Convention that prohibits formalities, NAFTA Article 1703(2) is largely duplicative of Berne on the issue of formalities.
272. International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, Oct. 26, 1961, 12 U.S.T. 2377, 496 U.N.T.S. 43.
273. Article 14 of the Rome Convention established minimum twenty-year terms for both phonograms and performances, measured either from the date of performance (for unfixed performances) or from the date of fixation (for performances recorded on phonograms). Id. art. 14. Article 17 of the WIPO Performances and Phonograms Treaty, Dec. 20, 1996, S. TREATY DOC. NO. 105-17, 36 I.L.M. 65 (1996), and Article 14(5) of TRIPs, supra note 16, extend these minimum terms to fifty years. TRIPs Article 14(5) also imposes a minimum twenty-year term for broadcasts. Id. art. 14(5).
274. Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, Oct. 29, 1971, art. 2, 25 U.S.T. 309, 325, 866 U.N.T.S. 67, 72.
275. Id. art. 5.
276. Indeed, because notice on existing works usually cannot be updated, notice can give misleading information regarding current ownership. For countries that choose to require notice, the marking requirement should be refocused to provide would-be users with information facilitating access to the registry, where the most up-to-date information on ownership would be available.
277. See supra note 215.
278. See Final Report, supra note 45, app. A at 622 (1986) ("[W]e have proposed what we think are minimal amendments to the law, only where change is clearly required, based upon widely shared understandings of Berne obligations . . . . A number of the alternatives we propose for consideration seek to exploit the distinction in treatment between works of foreign and national origin permitted by the Berne Convention.").
279. RICKETSON, supra note 208, at 856.
280. Berne Convention, supra note 14, art. 6(1).
281. LANDES & POSNER, supra note 1, ch. 8;
282. William M. Landes & Richard A. Posner, Indefinitely Renewable Copyright, 70 U. CHI. L. REV. 471 (2003).
283. Incompatibility with Berne's rule against formalities could be avoided, of course, by limiting the proposal to works of U.S. authors. But even such a limitation would not prevent incompatibility with the life-plus-fifty minimum term requirement, which applies to all works.
284. LANDES & POSNER, supra note 1, at 215 n.15.
285. In a forthcoming article, William Patry and Richard Posner argue that the problems created by ever-longer copyright terms in a deformalized system should be addressed by expanding the fair use doctrine to immunize use of works where a reasonable inquiry fails to identify a rightsholder from whom a license may be sought. William F. Patry & Richard A. Posner, Fair Use and Statutory Reform in the Wake of Eldred, 92 CAL. L. REV. (forthcoming 2004) (working draft on file with author). The Patry and Posner article does not attempt to describe in any detail what a "reasonable inquiry" is, or how reasonableness might be assessed in particular cases. The uncertainty attending a "reasonableness" standard, combined with the investments that would be required to undertake searches in every instance, suggests that expanding fair use would be a more costly and less effective solution than direct reformalization. In addition, the expansion of fair use to immunize users unable to identify rightsholders following a "reasonable inquiry" would raise a separate issue of Berne compliance. Berne Articles 10 and 10bis narrowly circumscribe the type of fair use rules that signatories may establish in domestic legislation. Although a full analysis of these provisions is outside the scope of this Article, suffice it to say that the Berne status of the fair use expansion proposed by Patry and Posner will be subject to debate.
286. H.R. 2601, 108th Cong. (2003).
287. See supra text accompanying note 214.
288. Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 YALE L.J. 87, 97-98 (1989).
289. See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1092-93 (1972).
290. WIPO Guide, supra note 208, at 33.
291. Cf. Calabresi & Melamed, supra note 244, at 1126.
292. TRIPs Article 13 provides that "[m]embers shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder." TRIPs, supra note 16, art. 13; see also Jane C. Ginsburg, Toward Supranational Copyright Law? The WTO Panel Decision and the "Three-Step Test" for Copyright Exceptions, 187 REVUE INTERNATIONALE DU DROIT D'AUTEUR 3 (2001) (analyzing the meaning of Article 13).
293. RICKETSON, supra note 208, at 489.
294. WORLD INTELLECTUAL PROP. ORG., RECORDS OF THE INTELLECTUAL PROPERTY CONFERENCE OF STOCKHOLM 1145-46 (1967).
295. World Trade Org., Report of the Panel, United States - Section 110(5) of the U.S. Copyright Act, WT/DS160/R (June 15, 2000) [hereinafter Panel Report].
296. 17 U.S.C. § 110(5) (2000).
297. Panel Report, supra note 250, ¶ 7.1. For a good summary of the details of § 110(5),
298. see Laurence R. Helfer, World Music on a U.S. Stage: A Berne/TRIPs and Economic Analysis of the Fairness in Music Licensing Act, 80 B.U. L. REV. 93, 96-98 (2000).
299. Panel Report, supra note 250, ¶ 6.66.
300. Id. ¶ 6.183; accord RICKETSON, supra note 208, at 483 (stating that "normal exploitation" refers to "the ways in which an author might reasonably be expected to exploit his work in the normal course of events").
301. See generally 2 GOLDSTEIN, supra note 140, ch. 10 (explaining the fair use doctrine).
302. Berne Convention, supra note 14, art. 10(1).
303. Id. art. 10(2).
304. Id. art. 10bis(2).
305. Even if default licenses did systematically interfere with rightsholders' ability to profit from their works, that interference remains permissible so long as it does not create "unreasonable prejudice." As the WTO panel made clear, whether an exception creates "unreasonable prejudice" will depend in part on whether compensation is provided to rightsholders: "in cases where there would be [a] serious loss of profit for the copyright owner, the law should provide him with some compensation (a system of compulsory licensing with equitable remuneration)." Panel Report, supra note 250, ¶ 6.229 n.205 (quoting WIPO Guide, supra note 208, at 56).
306. Although the facts before the WTO panel did not involve exceptions alleged to affect moral rights, the panel suggested in its report that a rightsholder's "legitimate interests" need not be "limited to actual or potential economic advantage or detriment." Id. ¶ 6.223.
307. Berne Convention, supra note 14, art. 6bis(1).
308. Berne Convention, Id.
309. Id. art. 6bis(2).
310. Pub. L. No. 101-650, §§ 601-610, 104 Stat. 5089, 5128-33 (1990) (codified in scattered sections of 17 U.S.C.).
311. 17 U.S.C. § 106A (2000). As Goldstein notes, the moral rights granted under VARA extend to a small number of valuable works that exist only in a single copy or that are published in signed and numbered editions of no more than two hundred copies, and are subject to limitations that "exempt[] from liability virtually all significant commercial uses of artistic works." GOLDSTEIN, supra note 195, at 284.
312. For a compelling argument that the United States has failed to comply with the Berne standards for moral rights, see John Henry Merryman, The Refrigerator of Bernard Buffet, 27 HASTINGS L.J. 1023 (1976).
313. See supra text accompanying notes 115-123.
314. This bolstering of the integrity right is limited, of course, by the demands of the First Amendment. Any attempt to limit parody or criticism through a restriction on derivative works should be repelled by the fair use doctrine.
315. WIPO Guide, supra note 208, at 55-57.
316. Panel Report, supra note 250, ¶ 6.97.
317. Id. ¶ 6.160.
318. Id. ¶ 6.108.
319. Id. ¶ 6.109.
320. Id. ¶¶ 6.122, 6.133.
321. Id. ¶¶ 6.142, 6.159.