Earlier this week photographer Dan Heller posted a reprise of a modest proposal to the United States Copyright Office and has received some support online.
The idea is simple. Since the USCO registration system is expensive, difficult to use and a waste of time, the USCO should open up the process and allow private companies to accept registrations in an official capacity and turn its focus on what Heller calls “oversight”.
To do this, the USCO should use an ICANN-like system for registering copyrights. ICANN, the Internet Corporation for Assigned Names and Numbers, is responsible for oversight of all domain names. However, users do not actually register domain names through ICANN, instead, they use any of the ICANN-certified registrars such as GoDaddy.
The idea, according to Heller, would drive down costs and increase processing power (the USCO system is notoriously backlogged) and would encourage more artists to register their work. But would it really work? It’s a difficult question but one well worth looking at.
It’s clear that the USCO registration system is broken. When the system was mail-only, it took months, to get a certificate of registration and the process was expensive, $45 per filing. Though the new electronic system reduced the cost by ten dollars and sped up the process some, it remains both difficult to use and, at times, hopelessly broken.
Clearly the USCO needs to remedy this and Heller’s proposal would, in theory, address many of these issues.
Consider the following potential benefits:
- Decreased Cost: With more entities competing for copyright holder business, costs would go down. Since processing costs would be minimal, theoretically, prices would fall sharply.
- Increased Speed: With the processing distributed among hundreds of organizations, the backlog would disappear.
- Better Simplicity: Registrars would not have to serve all kinds of copyright holders, they could focus on photographers, writers, musicians, etc. and could greatly simplify the registration process for each. They would also be free to use AJAX and other tools to make the process faster, easier and more reliable.
- Technological Advances: Registrars could find great ways to innovate the process. RSS Registration? Possible. Also, if Heller’s proposal is followed, a publicly-accessible database can lead a variety of search and information tools.
- Better Enforcement: Such a system would encourage more people to register their works, enabling them to sue for infringement and thus copyright would be taken more seriously as an offense and the playing field between major copyright holder and user would be more level.
All of this would come at almost no cost to the USCO, other than the lost revenue from handling all of the registrations themselves. Taxpayers, would pay almost nothing out of pocket for the change over.
It seems like the system is a true win-win, but the more I thought about it, the more flaws came to mind.
Though I have little doubt that the system would be a great benefit over the current one, there are still a lot of issues that have to be considered.
- Price: Though price would likely drop some, it would not be the kind of drop after Network Solutions lost its monopoly on domain names (Network Solutions charged $45 per year for most domains before the monopoly was terminated, domains are now just a few dollars at many places). The problem is that copyright registration is not like domain registrations, which recur annually with almost no additional cost on the registrar. A copyright registration is a one-time expense meaning the registrar has to recoup the entire cost of recruiting a customer on the first purchase. Furthermore processing requirements are much higher than with domains, further keeping costs higher.
- Continued Disparity: This system would not level the playing field between big and small copyright holders, and could actually make things worse. Large copyright holders, such as the RIAA, would just purchase a copyright registrar and charge themselves a nominal rate, likely just above the USCO processing fee, and leave other copyright holders to pay retail. At least, right now, everyone puts up with the same bad system, with only a few differences. We see this issue a lot with domain names.
- Still Too Expensive: Even if the cost of a copyright registration fell to just a dollar per post, bloggers, Flickr users, etc. would still likely find it too expensive to register all of the work. There would first have to be changes about how works could be bundled into collections and when registrations needed to be filed, in order to really make registration economical for most on the Web.
- Increased Confusion: There is already a great deal of confusion and misinformation about what you need to do to register a copyright, bringing in hundreds of new official registrars would just make things worse.
- Privacy Issues: There’s a huge dust up about privacy involving the whois database, the central database of the current ICANN registration system. Though you can search for copyright records and get some personal data, though not much, any such new system would have to be done with privacy in mind. Registering a domain is one thing, but a copyright shouldn’t require one to expose themselves to the world.
There is little doubt that this system would be better than the current one but I don’t think it would bring about the copyright utopia many would hope (though Heller himself made no such promise). The system would still be riddled with flaws and problems.
But even if the system were to be executed flawlessly, something that isn’t likely, it would still be a burden on copyright holders and we would still have a two-tiered system of registered and unregistered works.
At best, we would eliminate many of the worst problems with the USCO system itself, but leave behind the problems that having such a system creates.
The Only Real Solution
As I said before, the only real solution is to do away with the USCO registration process. So long as it is around most copyright holders will not know to or be able to register their works. As such, most copyright holders will be second-class citizens.
As a signatory to the Berne convention, we were supposed to have done away with all formalities for obtaining copyright protection and, though that is technically true in that you have all of the same rights to your work, unregistered works can not be sued over and it is financially impractical, in most cases, to sue for any infringement to a currently unregistered work.
The registration requirement, no matter how well-executed, only serves to punish ignorant and poor copyright holders that either do not know or can not afford to register. Furthermore, it punishes those who publish their works as soon as they are created, such as bloggers, as they can’t register before putting their works in the public sphere.
The system is imbalanced and the U.S. is currently the only major country with such a requirement. Removing the requirement would not only ensure all copyright holders were protected, but would bring the U.S. into parity with other nations.
The reason that we don’t get rid of the registration requirement is the same reason that we’re not going to see an ICANN-like registration system: Money and power. Though the USCO has been a money-losing proposition for many years, government agencies are notoriously slow to let go of both revenue streams and the powers/responsibilities that they have.
Would the USCO be wise to consider an ICANN-like system of registration? Sure. But they likely won’t simply because it would mean relinquishing their monopoly on copyright registrations and a severe reduction in the amount of revenue they would bring in. Though they would still likely charge a small fee per registration still (much like the 20 cent fee ICANN charges), even with the increase in likely registrations, they would not be able to make up the difference.
Though I would certainly prefer an ICAAN-style system to the current one, it would not solve the larger problems with U.S. copyright law.
There is no doubt that the registration system is hopeless broken, but it is not broken because the USCO has done a horrible job with it (though it has), it is broken because it exists at all.