Is Copyright A Gift You Can't Refuse?

Last week, a reader asked me to do a posting on whether one may disclaim an interest in copyright; in other words, is copyright a gift you can't refuse? The answer is yes you can disclaim an interest in an original work of authorship you have created. The issue only arises under a system of automatic copyright; that is, a system like ours where you don't have to satisfy a formality in order for copyright to vest. You create an original work of authorship, presto, you've got yourself a copyright.

OK, but what if you don't want the copyright? Given the millions of copyrighted works created every day in the United States and the fact that only about 600,000 claims to copyright are registered a year, clearly there are a lot of folks who aren't interested in vigorously protecting their copyrights (since registration is a prerequisite to important relief). But there are people who are interested in using works people don't care about (in a copyright sense). And it does happen sometimes that people who didn't care before, all of a sudden do care when someone else is using the work and making money off it, or is simply using it in a public way.

The problem is a relatively recent one. Until January 1, 1978 (the effective date of the 1976 Act), there were formalities placed on the existence of copyright. In the 1790 Act this entailed publishing a notice of a claim to copyright in newspapers (all the better to inform those who might not know of your claim), and registration with the clerk of your federal district court. In the 1909 Act, you merely had to place a proper notice in the book (or other published work), and eventually provide the Library of Congress with deposit copies. Additionally, however, failure to comply with the renewal requirement led to a vast amount of works falling into the public domain.

The 1976 Act went to a system of automatic copyright (Section 102(a)), but there was a mandatory notice requirement; not on the existence, but on the exercise of copyright. This distinction was played out in Section 405 which provided ways to cure the absence of, or an incorrect notice, thereby preventing a work from falling into the public domain.

Finally, until 1986, there was a manufacturing clause requirement (Section 601 of the 1976 Act). The nature of the requirement changed substantially over time (it began in 1891), but the short statement of it is that works covered by the requirement which were not printed and bound in the United States had no protection. Under the 1909 Act, the Customs Service would seize books coming into the country with a copyright notice but without being printed here or qualifying for an exemption. This requirement led some publishers to effectively abandon copyright by leaving the notice off, but there was also a procedure before the Copyright Office where one could actually record a notice of abandonment, so people could search the Office's records for such notices.

In short, one could deliberately inject a work into the public domain by consciously failing to comply with the requisite formality, or, the work could fall into the public domain through an inadvertent failure to comply. There is no question that the existence of formalities weeded out a very large number of works that authors had no copyright interest in. It is also true that copyright owners lost copyright inadvertently or through a genuine but failed effort to comply.

Formalities under the 1909 Act were extremely rigid and technical. Those who didn't practice under that Act tend to underestimate the difficulty of good faith efforts to comply, even by lawyers. For non-lawyers it was much worse.

I am a firm believer that we did the right thing by doing away with formalities, having seen first hand the tragic loss of copyright in works authors or their estates deeply cared about, but this doesn't mean the abolition of formalities hasn't led to its own set of problems. It has, and we have yet to solve those problems or to even try. The extension of term in 1998 has made the problem of "orphan works" (those works authors aren't interested in) even more important, perhaps critical. (One can of course, still disclaim copyright via a statement to that effect put on copies of the work, or you can file such a statement with the Copyright Office, or however else you want to publicize the fact).

Judge Posner and I wrote an article about the problem of orphan works and fair use, "Fair Use and Statutory Reform in the Wake of Eldred," 62 California Law Review 1639 (Dec. 2004). The Copyright Office on January 26, 2005 published a Notice of Inquiry requesting comments on the problem of orphan works. A number of comments have been submitted and they make good reading. Congress has indicate some receptivity to the problem and this may be a way, small as it is, to ameliorate some of the problems.