Three Hundred Years Since the Statute of Anne, from 1709 to Cyberspace
Edited by Lionel Bently, Uma Suthersanen and Paul Torremans
Chapter 30: The US Experience with Formalities: A Love/Hate Relationship
30. The US experience with formalities: a love/hate relationship Jane C. Ginsburg* 1 INTRODUCTION Given calls, such as those expressed in Stef van Gompel’s provocative contribution, Formalities in the digital era: an obstacle or opportunity?,1 a reality check might be in order. The United States has had de jure or de facto mandatory copyright formalities for over 200 years: Does our experience serve as an inspiration or as a cautionary tale? Copyright formalities – conditions precedent to the existence or enforcement of copyright, such as provision of information about works of authorship that will put the public on notice as to a work’s protected status and its copyright ownership, or deposit of copies of the work for the national library or other central authority, or local manufacture of copies of works of foreign origin – have performed a variety of functions in US copyright history. First, formalities that condition the existence or enforcement of copyright on supplying information about works of authorship should enable effective title searching, thus furthering the economic interests both of copyright owners and of potential exploiters. Secondly, copyrightconstitutive formalities, principally notice of copyright, but also at various times deposit, registration and renewal, erect a barrier to the existence of protection, concomitantly casting into the public domain published works that fail to comply. These formalities thus (at least in theory) have divided * Morton L. Janklow Professor of literary and artistic property law, Columbia University School of Law. This report is based in part on a lecture given 20...
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