3 of 50 DOCUMENTS
Copyright (c) 2012 by the President and Fellows of Harvard College
Harvard Journal of Law & Technology
Spring, 2012
Harvard Journal of Law & Technology
25 Harv. J. Law & Tec 697
LENGTH: 9635 words
NOTE: A PERFECT (COPYRIGHT) UNION: UNITING REGISTRATION AND LICENSE DESIGNATION
NAME: Matthew P. Gelfand*
BIO:
* Harvard Law School, Candidate for J.D., 2012; Sc.B., Brown University, 2008. The author would like to
thank R. Craig Kitchen, Adam Lewin, and the staff of the Harvard Journal of Law and Technology for their hard
work bringing this Note to print, and to Robin Achen and the members of the journal's student writing
committee for helpful comments on earlier drafts. The seed for this Note comes from a proposal by Christopher
Sprigman, see infra note 11, and an examination in William Fisher's course in Copyright Law. All errors are the
author's own.
LEXISNEXIS SUMMARY:
... New and fading types of creation might justify changes to the rights schemes, but inertia would operate to keep the
rights schemes static. ... The CC licenses allow creators to license their content to users with restrictions chosen from a
menu of commonly desired moral and economic rights reservations -- for example, prohibiting derivative works or
modifications to downstream licensing. ... The Creative Commons License Scheme The CC 3.0 licenses contain
general provisions common to all of the licenses, as well as drop-in clauses (designations) associated with each of the
four specific rights reservations provided by the system. ... COMBINING FREE LICENSING WITH COPYRIGHT
REGISTRATION This Note proposes a solution to the overprotection problem that involves combining the steps of
some-rights-reserved license designation and copyright registration, to provide benefits of both copyright heterogeneity
and copyright formalities while avoiding some of the pitfalls of each.
TEXT:
[*697] I. INTRODUCTION
A major criticism of the current copyright system is that it affords overly broad protection in terms of the duration,
works, and uses covered. n1 Following the passage of the Copyright Act of 1976 n2 and the [*698] Berne
Convention, n3 copyright protection has been given extraordinarily long duration, n4 and breadth-limiting formalities
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have been eliminated. n5 Virtually any use of the creative expressive content in a work is subject to control by a
copyright-holder, n6 and attempts to invoke the "fair use" exception can result in protracted legal disputes. n7 The
result is near-constant infringement of copyright, made bearable only by virtue of limited enforcement. n8
Transaction-cost barriers to licensing copyrighted content exacerbate this problem. Each time an individual wants
to make use of content, she must (1) identify all of the potentially protected works embodied in the content, n9 (2)
identify the protected or unprotected status of those works with respect to the intended use, n10 (3) identify the relevant
copyright owners, and (4) negotiate a license or determine that the expected/potential liability is sufficiently low to
permit unlicensed use. The homogeneous nature of the copyright system reinforces this problem. While the copyright
system uses a one-size-fitsall approach to incentivize content creation, many creators would be sufficiently incentivized
by a system that freely permitted some types of uses, or use by some types of users. Consequently, most uses of
protected works -- even uses to which virtually any author would consent -- must be cleared through this
high-transaction-cost process.
The result is a copyright system that fails both content creators and content users. Content creators are denied
opportunities to see their works disseminated because the system assumes by default that [*699] they want strong
protections. Content users -- both passive consumers and downstream creators -- are denied opportunities to use works
in ways for which copyright protection is not necessary in order to incentivize creation. Put simply, there are work-use
combinations that are unnecessarily subjected to strong copyright protection and the associated high transaction costs of
license negotiations. This Note refers to this as the overprotection problem.
This Note proposes a solution to this problem, based on a combination of two existing structures: copyright
heterogeneity and copyright formalities. n11 Copyright heterogeneity describes structures that permit different types of
copyright protection to be chosen by a content creator; today, copyright heterogeneity is achieved primarily through the
use of form licenses that permit certain free uses of a work (for example, the Creative Commons licenses). Copyright
formalities are steps -- such as inclusion of a copyright notice or registration with a national copyright office -- that must
be taken by content creators to secure protection for their works. Although formalities once operated to substantially
limit