Land Recording and Copyright Reform

Citation: Molly Shaffer Van Houweling (2014/03/09) Land Recording and Copyright Reform. Berkeley Technology Law Journal (RSS)
Internet Archive Scholar (search for fulltext): Land Recording and Copyright Reform
Download: http://btlj.org/data/articles/28 3/1497-1510 VanHouweling 030414.pdf
Tagged: copyright (RSS), copyright formalities (RSS), berne convention (RSS)

Summary

Reviews proposals for reformalization within Berne constraints, emphasizing those which incentivize information provision by both copyright holders and users, and take advantage of nonrival nature of information to allow improperly recorded transfers to gracefully degrade to nonexclusive licenses, which would not work for land.

This is informed by land recording systems established in U.S. states, in which recordation is incentivized, not mandatory:

"recording is not generally required to establish interests in land—just as registration and recording are not required to establish copyright ownership. Instead, land recording systems prioritize competing interests in ways that powerfully incentivize recording and other types of information provision. In that way the system for land is not fundamentally different from the contemporary copyright system in the United States, which incentivizes but does not require registration of initial ownership and recording of transfers. And yet, the land recording system (while imperfect) is widely regarded as more comprehensive and useful than the copyright system. This suggests that the copyright system might be improved without fundamental change, but rather through a more effective system of incentives."

Three incentive arrangements (emphasis added):

"contemporary land recording rules are all departures from the common law first-in-time rule, under which a transfer of Blackacre from owner O to buyer A trumped O’s later purported transfer to subsequent buyer B. Recording acts all introduce the idea that B’s claim should prevail over A’s under some circumstances. They are typically characterized as one of three general types: under “race” recording statutes (the least common of the three types), B’s interest trumps A’s if B records before A does; under “notice” statutes, B prevails so long as B took without actual or constructive notice of A’s prior claim; and under “race-notice” statutes, B prevails only if he lacked notice and recorded his interest before A recorded hers."

Theoretical and Practical Relevance

Can incentivized rather than mandatory recordation be structured so as to make more works usable by commons-based projects that rely on relatively certain permission or lack of restriction (i.e., public licenses or public domain) rather than businesses that just need a bit more certainty and lower penalties?