The Copyright Principles Project Misses the Point on Copyright Registration–we have registration now, where is the benefit?

Google is–of course–very interested in orphan works.  They have a deep and abiding interest in the subject.  For example, current Twitter General Counsel, Google’s then-attorney, Berkman Center affiliate, Lessig acolyte, and all round digital sophisticate Alexander MacGilivrey made that clear in his testimony at the Copyright Office:

“I would encourage the Copyright Office to consider not just the very, very small scale, the one user who wants to make use of the work, but also the very, very large scale and talking in the millions of works.”

That statement was made on July 22, 2005—almost 4 months to the day before the Library of Congress announced a $3 million gift from Google for the Librarian’s World Digital Library pet project.

Next week, the House IP Subcommittee will hold a hearing with the following participants:

Jon Baumgarten, retired Proskauer Rose attorney and former General Counsel of the U.S. Copyright Office;

Laura Gasaway, Professor, University of North Carolina Law School and co-chair of the Section 108 Study Group;

Daniel Gervais, Director, Vanderbilt Law School Intellectual Property Program;;

Pam Samuelson, Professor, University of California at Berkeley Law School

Jule Sigall, Assistant General Counsel for Copyright, Microsoft and former Associate Register for Policy and International Affairs of the U.S. Copyright Office.

One thing should jump out at you about this group.

No creators.  No photographers, illustrators, visual artists, film makers, recording artists or songwriters.

But in its own way, this is not unusual because they will be discussing something called the “Copyright Principles Project”.  Who’s that you say?

According to the “THE COPYRIGHT PRINCIPLES PROJECT: DIRECTIONS FOR REFORM”.  (This article was published in the Berkeley Technology Law Journal which we linked to in case you’re subscription expired for some odd reason.  I’m sure they won’t mind.)

The “convenor” of The Project is Professor Pamela Samuelson, a noted anti artist campaigner who puts her money where her mouth is and has founded the Samuelson Glushko legal clinics at various universities with her husband, the Silicon Valley tycoon Robert Glushko.   (If anyone has any idea what the title “convenor” means, please let me know.  MTP readers will remember that the US based Samuelson Glushko acquired for an unknown sum the naming rights to the Canadian Internet Policy and Public Interest Clinic operated by the well known Canada booster Michael Geist at the University of Ottawa, now known as the Samuelson Glushko Canadian Internet Policy and Public Interest Clinic.)

“The following persons are members of the Copyright Principles Project:
Pamela Samuelson, Berkeley Law School (convenor)
Jon A. Baumgarten, Proskauer Rose LLP
Michael W. Carroll, American University, Washington College of Law
Julie E. Cohen, Georgetown University Law Center
Troy Dow, The Walt Disney Co.
Brian Fitzgerald, Queensland University of Technology
Laura Gasaway, University of North Carolina School of Law
Daniel Gervais, Vanderbilt Law School
Terry Ilardi, IBM Corp.
Jessica Litman, University of Michigan School of Law
Lydia Pallas Loren, Lewis & Clark Law School
Glynn Lunney, Tulane University School of Law
Tyler Ochoa, Santa Clara University School of Law
R. Anthony Reese, University of California, Irvine, School of Law
Kate Spelman, Cobalt LLC
Christopher Sprigman, University of Virginia School of Law
Jule Sigall, Microsoft Corp.
Michael Traynor, President Emeritus, American Law Institute
Tara Wheatland, Berkeley Law School
Jeremy Williams, Warner Bros. Entertainment Inc.”

Before we move on to the substance, note a couple things about the composition of this list of members.

Not one artist.  Not one union.  Not even a record company or music publisher.  No visual artists, no photographers.  We do see a representative from Disney and from Warner.  Why might they be there?  Remember what Deep Throat said in All the President’s Men? “The people behind all of this were frightened of Muskey and that’s what got him destroyed. They wanted to run against McGovern. Look who they’re running against.  [McGovern]”

Do they have Disney and Warner in there because the studios are easy to hate (see Lessig and Pirate Party)?  Did the “conveynor” exclude artists because they don’t want to give artists a platform? As stated in “Winning the Web,” the anti-artist organizer’s manual, “And as the ORG campaign suggests, campaigners are often faced with simple, instinctually appealing messages from the other side (“artists need to get paid”) that are difficult to beat with a focus on the IP mechanism.” (The ORG is the Open Rights Group, the UK cousin of the Electronic Frontier Foundation.)

So just because a studio happens to be included in this group, do not let that deceive anyone into thinking that artist interests are represented.  We will be looking at all of the Project’s 25 proposals and offer suggestions.  But I note at the outset that this group has squandered an opportunity to include in their discussion those whose rights are implicated and not just large corporate interests–Big Tech and Big Media–and those who love them.  But we shouldn’t be surprised, because to paraphrase David Lowery, these are the thought leaders of those who want to stick it to the hippie freak musicians who create the copyrights and unstick it to multinational corporations that commoditize them.  (See “Meet the New Boss, Worse Than the Old Boss.”)

We’ve seen The Man before.  This is just The Man 2.0.

Let’s take a quick look at one of the 25 points in The Project’s paper.

“Deformalization”

The Project’s paper has a number of points that deal with the apparent evils of the demise of the “formality” of registration or affixing a copyright notice, etc., that were the old law in the US before the US updated the US copyright law to come in line with the countries from Azerbaijan to Zimbabwe.  One reason to get rid of registration is to offer creators and their heirs copyright protection regardless of whether they ticked a box or forgot to register.

There are a couple different ways to look at copyright protection:  the right to the own the copyright and the ability to prevent others from infringing on that copyright.  If you say to artists you have the right to copyright as set forth in international treaties, but it is an odd construct to say that if a creator fails to register their works others may use them until you catch them–without notice to the creator–and if the creator catches them the creator may not seek damages from them for infringing your works.  Because that is a right without a remedy.

And as we know, a right without a remedy is no right at all.

The Project’s version of “Deformalization” talking point can be summarized:

Copyright law should encourage copyright owners to register their works so that better information will be available as to who claims copyright ownership in which works. Deformalization inhibits reuses of many works because there is no simple way to distinguish between those works whose authors care about copyright protection and those who do not.  The new registration system would provide meaningful incentives to register works that authors or other rights holders expect to have commercial value, ease user access to registered works, and reduce the consequences of infringement for unregistered works.

The Project believes that registration is the definitive method to know the mind of copyright owners as to whether the creator wants to protect their works.  You may never have thought about this much before, but apparently in the hive mind of The Project, the default rule should not be that property should be protected because it is private property.

If you happen on a creation on the Internet, The Project would have you believe that the correct analysis isn’t whoever owns this, I know I don’t, so therefore I should not take it.  No, no.  The correct analysis, says The Project, is I should determine if the the copyright owner has taken a particular course of action–registration–and only then will I know definitively whether I can use the copyright as I see fit and without regard to the creator’s wishes, however many ways that creator may have expressed their wishes about the disposition of their works.

This would be like requiring you to file a particular notice with the county assessor’s office instead of posting a sign that said “BEWARE OF DOG”.  If you cared more about full employment for lawyers rather than full employment for dogs, you might find this appealing.  But then you’d be called a property troll, wouldn’t you?

In the minds of The Project, property should only receive its full protection if the property owner has taken the specific action of registration to indicate that the property owner wishes to protect the property.  This is, of course, exactly why the Berne Convention (the major international copyright treaty) prohibits “formalities” and government mandated conditions on copyrights.  And why adherence to The Project’s views will very likely land us in a hugely expensive arbitration at WTO.

So the default will then be no punishment for infringement without registration, and until registration the rights are available to the public, i.e., the default will be the collective ownership of copyrights or at least the unfettered commercial use by Big Media and Big Tech.

And what it really boils down for The Project to is that “deformalization” is bad, and re-regulation is good.  And just watch all the supposed libertarians line up to defend collectivization.

Let’s look at these points again:

“Copyright law should encourage copyright owners to register their works so that better information will be available as to who claims copyright ownership in which works.”

The market produces that information already.  The potential user says, “Do I own this work?”  If the answer is “No,” then ask permission or use something else.

You could even go a step farther–ask if the work has been made available under a Creative Commons license.  Just look up the work in the Creative Commons registration database.  Oh, wait–there isn’t one.  Well…do the best you can.  If you still can’t find a Creative Commons license, then find something else.

Deformalization inhibits reuses of many works because there is no simple way to distinguish between those works whose authors care about copyright protection and those who do not.

See above.  Assume all care about copyright protection.  If the reuse is important enough, the owner will be found.

The new registration system would provide meaningful incentives to register works that authors or other rights holders expect to have commercial value, ease user access to registered works, and reduce the consequences of infringement for unregistered works.

This is interesting–the notion of “commercial value” has crept in.  What if the owner thinks the work will have commercial value, but it hasn’t yet acquired that commercial value.  What if the owner doesn’t want to take a chance on guessing wrong and registers everything?  And what if the work doesn’t acquire that value during the lifetime of the author?  Does this “commercial value” concept become a rebuttable presumption even for registered works?

And the downside for authors?  Collectivization or corporatization of their unregistered work based on someone else’s unwillingness to ask permission.  And as we all know, the really pressing problem for rights holders online is dealing with all the permission requests they get–for registered works under the current US copyright law.  (That’s a joke.)

And this is the real question for The Project.  There is currently a registration system in the US.  Many, many works are registered with the Copyright Office.  Piracy is rampant, and major brands sponsor piracy through advertising sold by criminal organizations.  If registration was working, wouldn’t we see some evidence of it without standing the current copyright law on its head?

As (then) Google lawyer Alexander MacGilivrey made clear in his testimony at the Copyright Office:

“I would encourage the Copyright Office to consider not just the very, very small scale, the one user who wants to make use of the work, but also the very, very large scale and talking in the millions of works.”

Kind of hard to do without “deformalization”.

One thought on “The Copyright Principles Project Misses the Point on Copyright Registration–we have registration now, where is the benefit?

  1. I’m a writer. Some of my works I registered the US Copyright Office; many I didn’t. I think writers and other creators have to be realistic about copyright and business–if we want to be paid when someone uses our work, we have to make ourselves known. And findable.

    But I don’t think registration is adequate. I think we need to establish licensing agencies in media that don’t have them, especially writing. Corporate users and their shills don’t want to talk about licensing agencies because agencies are powerfully motivated to pursue users like them, to demand money for use, to prevent unlicensed use.

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