Can Formalities Save The Public Domain? Reconsidering Formalities For The 2010s

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Citation: Niva Elkin-Koren (2014/03/09) Can Formalities Save The Public Domain? Reconsidering Formalities For The 2010s. Berkeley Technology Law Journal (RSS)
Internet Archive Scholar (search for fulltext): Can Formalities Save The Public Domain? Reconsidering Formalities For The 2010s
Download: 3/1537-1564 Elkin-Koren 022414.pdf
Tagged: copyright (RSS), copyright formalities (RSS)


"formalities may shape the digital ecosystem in ways that may not necessarily serve the public domain"

"Paying more attention to the potential effect of formalities on user-generated content (“UGC”), collaborative production, and the role of mega-platforms in implementing a formalities regime might help us imagine the possibilities and risks in the digital ecosystem and design the legal tools that are necessary to align the law with the digital era."

Author critiques three arguments for formalities:

  • Filter: "The main flaw in the attempt to use formalities to weed out works that should be in the public domain is the commercial bias. Filtering by formalitiesmeasures the gap between the cost of registration and the expected commercial value in the eyes of the beholder. This standard assumes that the owner’s assessment of the commercial value of the work is a proper criterion for granting copyright protection. This standard might be systematically biased, however, toward the content industry, giving commercial players extra incentives to register and win copyright protection, while at the same time putting other players in the digital ecosystem at a serious disadvantage."
  • Uncertainty reduction: "notices and deposits cannot fully address legal uncertainty, as it stems from the nature of copyright law and its fundamental principles. Legal uncertainty regarding the scope of protection arises from the fact that copyrighted works are often composed of both protected expression and unprotected ideas. Consequently, determining what is covered by copyright and what is in the public domain involves legal analysis, which takes place in court ex post."
  • Reduce copyright holder search costs: "even when considerable information about the author and ownership is available, there could be other barriers to efficient licensing, such as reaching an agreement on the terms and conditions of the license. These obstacles do not stem from the absence of formalities, but rather from the fact that copyright law, which is a property rule, requires a license in advance."

Critiques based on digital ecosystem:

  • "Legal policy should take account of collaborative practices of generating content and mitigating the individual interests of original contributors, and the mutual interest of the community of authors engaging in social production as a whole. For instance, rules regarding notices may apply to the outcome of a collaborative work as a whole, or may be attached to each separate micro-effort that meets the originality threshold."
  • "The shift to digital dissemination would make mega-platforms a focal point for implementing any system of formalities. Any technical application of formalities would depend on implementation by facilitating platforms and should take into account the way in which platforms reshape the relationship between copyright owners and the users of content. The implementation of formalities through mega-platforms may also call for some caution. It may raise new concerns that did not previously exist. Once formalities are integrated into the system, monitoring, collection, and enforcement could become easily available."

"Reintroducing formalities for screening works that might not be commercially valuable may weaken the forces that facilitated the rise of UGC, and impede the emergence of new innovative creative practices"

"When only works of noncommercial value end up in the public domain, we cannot guarantee that the public domain will be capable of serving the purposes that it ought to promote."

"In sum, by making it easier for industrial players than for individual players to acquire copyright protection, reintroducing formalities may favor commercial production of content. Individuals may nonetheless be required to acquire a license to reuse any commercial materials in their UGC. Overall, reintroducing formalities may result in protecting content generated by the content industry and excluding UGC from protection. Yet, this may not end up releasing “lock-up” of works that formalities advocates sought to release. The copyright of user-authors never posed a significant threat to a vibrant copyright environment, as most users are not interested in enforcing their rights against other users, and at large have developed efficient mechanisms for signaling and licensing their works.

Moreover, reintroducing formalities may put social production of content and non-market creative practices at a disadvantage, thus compromising creative practices which are essential for keeping a vibrant public discourse and facilitating a participatory cultural environment."