Worst hit of all are the bloggers, who often endure the worst kinds of infringement only to discover that they have no ability to enforce their rights.
At fault is a legal system that is still in place nearly 20 years after it was supposed to be eradicated. It ensures that copyright in the United States favors big businesses, such as the publishing houses, record labels and movie studios, while limiting the rights of the everyday citizen.
Worst of all, even as the government talks about strengthening other areas of copyright law to the point of insanity, there is no mention of righting this fundamental imbalance.
It is time to close the United States Copyright Office, or at least a large portion of it, end the registration requirement and, finally, bring small copyright holders to table.
No other Western nation has this requirement and it is time for the U.S. to catch up with the rest of the world.
A Bit of History
When the United States signed on to the Berne Convention in 1989, well after nearly every other country had signed on, all formalities required to obtain a copyright were supposed to be eliminated. This included, in theory, copyright registration.
The United States, however, found a way around that. According to U.S. law, all of the rights a copyright holder obtains are bestowed upon them once the work is “fixated into a tangible medium of expression” but one has to register their copyright and pay the $45 fee before they can sue for any infringement in a Federal court.
This is akin to saying that you own a vehicle once you have paid for it, however, you have to register it with the motor vehicle office and pay a fee before the police will look for it if it is stolen. The ownership is effectively meaningless.
Worse still, in the U.S., you can only sue for statutory damages for infringement that occurs after the work is registered. Since actual damages in many infringements is effectively zero (and are difficult to prove when they take place), suing for infringements that take place before registration is almost impossible.
This system does not hurt traditional media. The cost of registering works is not prohibitive to them and, generally, they can register works before they are distributed, such as submitting a CD or book before publication. Bloggers, on the other hand, can not afford the $45 per work fee and can not wait to register a work before publishing it. For us, creation and distribution are the same process.
At best, bloggers can register their site as a collection, for one fee, months after the first works were published. This is far too late to deal with most infringement as the life cycle of a blog entry is often measured in hours, not weeks.
By the time the registration is complete, the opportunity to enforce copyright has long since passed.
An Unfair System
In addition to favoring large copyright holders, the system is unfair for a spate of of other reasons as well.
- Favors Foreign Works: Due to the Berne Convention, courts have to treat foreign works as if they were registered whether or not they were. Though many foreign copyright holders still register for the prima facie evidence of ownership, they can sue for statutory damages regardless of registration status. In short, the U.S. treats its own copyright holders worse than ones in other countries.
- Favors Wealthy Copyright Holders: A $45 registration fee might not seem like a great deal, but when you register many works, the cost can add up quickly. Simply put, wealthy copyright holders are better able to register and protect their works than poorer ones. The removal of formalities was designed to remove that kind of bias.
- Harms those Ignorant of the Law: Copyright holders unaware that they need to register in order to sue for infringement or collect statutory damages might not register and, out of ignorance, harm their rights. Since copyright law is such a difficult and misunderstood area of law, such confusion is bound to happen among artists, who tend to be laypeople.
- Harms Immediate Media: Any media that does not have a delay between completion and distribution can be harmed by this. Since the copyright holder can not wait for the work to arrive at the USCO, which is when the registration becomes effective, some infringement will almost always happen before the work is registered. This hurts journalists, both traditional and Web-based, as well as many types of radio/tv programming.
- No Benefit to Artists: If the intent of copyright is “To promote the progress of science and useful arts” then this system is a total failure. Removing it would not harm any copyright holders, including those that work well under the system now, but would help the vast majority of rights holders.
None of this would be an issue if the copyright office and copyright law would recognize online distribution of a work as publication. Since you have three months after the date of publication to register a work without missing out on any damages, it would, theoretically, be possible for a blogger to re-register their site every three months.
However, the copyright office, generally, does not consider posting to the Web as publication (PDF), but rather, as public display. Though the author can choose to present the work as published, there is no guarantee that would hold up in court.
When it is all said and done, there is no legitimate reason for keeping this copyright registration policy in place. There is a good reason that other nations have done away with their registration requirements, at least as a requirement for copyright enforcement and it becomes clear why when one looks at the problems associated with such a system.
Worse still, as the Internet not only increases the distribution of works, but the speed with which they are published, it only pushes the Copyright Office further and further in to obseletion, making it nothing more than a relic and an antiquated system.
Some Good News
Fortunately, when it comes to copyright registration and bloggers, there is some good news.
However, if either of those notices are ignored, then enforcement through a court of law would be almost impossible. One could register then and hope that the work arrives at the USCO before the infringing copy is removed, but even as the work was traveling to the Copyright Office, unclaimable damages would be accruing.
Second, there is one kind of copyright infringement that does not require a registration to sue for, the removal or falsifying of copyright management information (CMI). This is basically the removal of attribution, copyright information or licensing data from a copyright protected work, a critical element of plagiarism but not all copyright infringement.
Though you would still have to register your work before you sued, you could still claim damages for infringements that took place before the registration was filed. Those damages, according to the law, are between $2,500 and $25,000 per work. This amount could easily be worth suing over if more than a few works were taken.
But even with these tools available to non-registered rightsholders, it is clear that severe limitations are still imposed on them, limitations that do not appear ready to be lifted any time soon.
It is the height of insanity that the United States, on one hand, keeps increasing penalties for copyright infringement and empowering copyright holders more than ever while simultaneously keeping the majority of rightsholders from enjoying those privileges.
It is a showcase of favoritism and raises severe questions about the impartiality of our copyright policy.
Of course, if all copyright holders were brought to the table and able to eat the same food as the RIAA, the insanity of much of the U.S. copyright code might be exposed. Drastic steps might seem prudent when trying to defend a multi-billion dollar industry, but what happens when bloggers get the same rights and start to use them?
Strangely, empowering all rightsholders might help users and the public at large by forcing the government to look at its other policies and make rational changes. The abuse of the wealthy can be justified on paper but the abuse of many can not. In short, the current system encourages the RIAA and the MPAA abuses we’ve witnessed by ensuring only a wealthy handful have the ability to take advantage of the law, letting those in power justify the system that is in place.
However, all copyright holders are, supposedly, equal and should enjoy the same protections for their work, regardless of their wealth or background.
The published poet did not work more than the unpublished one. The musician with the record contract put as much love into his music as the one still in his garage.
Copyright law should reflect that, even if it means making other changes to the law. It is that simple.