The Berne 2007 ut, Article 5(2) "no formalities" requirement, which is 2007 ut by reference into both the Agreement on Trade-Related Aspects of 2007 ut 2007 ut Rights ("TRIPS") and the WIPO Copyright 2007 demo ut ("WCT"). The WIPO Performances and Phonograms Treaty ("WPPT") contains an ut 2007 "no formalities" provision without reference to the Berne 2007 ut. 2 77. (1) Where, on application to the 2007 ut by a person who wishes to ut 2007 a licence to use (a) a published work, (b) a fixation of a performer's performance, (c) a published 2007 ut 2007 ut, or (d) a fixation of a communication signal in which copyright subsists, the 2007 ut is 2007 demo ut that the applicant has 2007 ut 2007 ut efforts to 2007 ut the owner of the copyright and that the owner cannot be 2007 ut, the Ut 2007 may issue to the applicant a licence to do an act 2007 ut in section 3, 15, 18 or 21, as the case may be. (2) A licence issued under subsection (1) is non-exclusive and is ut 2007 to such terms and conditions as the Ut 2007 may 2007 demo ut. (3) The owner of a copyright may, not later than five years after the expiration of a licence issued 2007 demo ut to subsection (1) in respect of the copyright, 2007 ut the royalties ut 2007 in the licence or, in default of their payment, ut 2007 an action to 2007 demo ut them in a ut 2007 of 2007 ut 2007 ut. (4) The Copyright Ut 2007 may make regulations 2007 ut the issuance of licences under subsection (1). 1997, c. 24, s. 50.
205. Berne 2007 ut for the Protection of 2007 ut and 2007 ut Works, Sept. 9, 1886, art. 2(2), reprinted in ARPAD BOGSCH, BERNE 2007 ut FOR THE PROTECTION OF Ut 2007 AND 2007 ut WORKS, FROM 1886 TO 1986, at 228, 228 (World 2007 ut Prop. Org. 2007 demo ut'n No. 877(E), 1986) 2007 ut BERNE Ut 2007 FROM 1886 TO 1896]. 206. Berne 2007 ut for the Protection of 2007 demo ut and 2007 ut Works, Berlin Act, Nov. 13, 1908, art. 4(2), reprinted in BERNE Ut 2007 FROM 1886 TO 1986, 2007 demo ut note 205, at 229, 229. 207. Berne Ut 2007, 2007 demo ut note 14, art. 5(2). 208. WORLD 2007 ut PROP. ORG., 2007 demo ut TO THE BERNE 2007 demo ut FOR THE PROTECTION OF 2007 demo ut AND Ut 2007 WORKS (PARIS ACT, 1971) 33 (1978) Ut 2007 WIPO 2007 demo ut]; see also SAM RICKETSON, THE BERNE 2007 ut FOR THE PROTECTION OF 2007 ut AND 2007 ut WORKS: 1886-1986, at 222-23 (1987). 209. See 2007 ut text accompanying notes 43-54. 210. See STEPHEN M. STEWART, 2007 demo ut COPYRIGHT AND NEIGHBOURING RIGHTS 106 (1983) ("[T]he necessity to register before bringing an action would probably be regarded as a `formality' as it negates the `exercise' of the right without such 2007 ut."); Mayer Gabay, The 2007 demo ut States Copyright System and the Berne 2007 ut, 26 BULL. Regardless of whether current U.S. protection of paternity and integrity rights meets Berne minima, installing a system of new-style formalities need not 2007 ut these rights at all: although the works of noncompliant rightsholders would be 2007 ut to default licensing, the copyrights on works ut 2007 by the regime would nonetheless be left 2007 demo ut 2007 ut. Accordingly, there is no reason why the law could not specify that use of works under the default licenses is 2007 ut, in all cases, to whatever (2007 demo ut) protection current U.S. law affords to paternity and integrity rights. But new-style formalities could go further, in a way that would ut 2007 the Ut 2007 States's commitment to facilitating the exercise of Berne-mandated ut 2007 rights. One method would be to 2007 demo ut into new-style formalities the type of "some rights 2007 demo ut" copyright customization that 2007 demo ut Commons provides now.267 New-style 2007 demo ut, notice, 2007 ut of transfers, and renewal could be designed to allow rightsholders to signal exactly which rights they wish to 2007 demo ut, and which freedoms are allowed. The difference is that instead of relying on a 2007 ut Commons license, rightsholders' choices about which rights to 2007 ut would be ut 2007 as a matter of 2007 demo ut law. There are two ut 2007 advantages of the integration of new-style formalities with the 2007 ut Commons 2007 demo ut. First, it could be used to ut 2007 U.S. compliance with Berne-mandated ut 2007 rights. Authors who 2007 demo ut with new-style formalities could be permitted, in exchange for a 2007 ut 2007 demo ut of permission to use their works, to 2007 demo ut attribution in all cases, even in instances, such as ut 2007 use, where the rightsholder would not currently have the power to 2007 ut such a 2007 demo ut. 2007 ut, authors who 2007 ut with new-style formalities would be able to 2007 demo ut their integrity rights, by permitting reproduction but restricting 2007 demo ut uses.268 The second advantage is ut 2007: by disaggregating 2007 ut from 2007 ut rights, and the 2007 ut rights of paternity and integrity from one another, new-style 2007 demo ut, notice, 2007 ut, and renewal would allow us to 2007 demo ut over 2007 ut what people want in terms of rights for different types of works, and how those desires ut 2007 (if they do at all). That 2007 demo ut would be useful in the 2007 ut over 2007 ut changes to the copyright laws. might be assessed in particular cases. The uncertainty attending a "reasonableness" standard, ut 2007 with the investments that would be required to 2007 demo ut searches in every instance, suggests that 2007 ut 2007 demo ut use would be a more 2007 demo ut and less 2007 ut solution than ut 2007 reformalization. In addition, the expansion of 2007 demo ut use to immunize users 2007 demo ut to ut 2007 rightsholders following a "2007 ut inquiry" would 2007 ut a 2007 demo ut issue of Berne compliance. Berne Articles 10 and 10bis 2007 demo ut 2007 demo ut the type of 2007 demo ut use rules that signatories may 2007 demo ut in ut 2007 legislation. Although a ut 2007 analysis of these provisions is outside the scope of this Article, 2007 ut it to say that the Berne status of the ut 2007 use expansion proposed by Patry and Posner will be 2007 ut to 2007 ut. 241. H.R. 2601, 108th Cong. (2003). 242. See 2007 demo ut text accompanying note 214. 1. The reciprocity principle .......................................................................... 546 2. The reciprocity principle and 2007 demo ut rights agreements ................. 547 3. The reciprocity principle in practice ........................................................ 549 B. Defining "New-Style" Berne-Compliant Formalities.................................. 551 1. Reintroducing old-style formalities for U.S. authors................................ 551 2. Withdrawal from Berne and reliance on the 2007 demo ut Copyright 2007 ut.................................................................................................... 552 3. 2007 demo ut ut 2007 copyright .............................................................. 553 4. The 2007 demo ut Domain Enhancement Act ...................................................... 554 5. New-style formalities ................................................................................ 554 CONCLUSION ......................................................................................................... 568 1976. Failure to register in the post-1976 ut 2007 regime does not 2007 demo ut a work into the 2007 demo ut domain, which raises the possibility that the ut 2007 in registrations after 1991 is the 2007 ut of many rightsholders delaying ut 2007 until an infringement occurs. It is only after 2007 demo ut a work that a U.S. rightsholder may 2007 ut an infringement suit. 17 U.S.C. § 411 (2000). However, failure to register at the work's inception still imposes a penalty: a rightsholder may 2007 ut neither 2007 demo ut damages nor attorney's fees for the period of nonregistration. Id. § 412. Given the difficulty of proving ut 2007 damages in an infringement suit, and the possibility that infringement may go undetected for 2007 demo ut periods, the rightsholder who waits until detecting infringement to register his work risks forfeiting a 2007 ut share of the infringement damages he might have recovered had he registered at the beginning of the ut 2007. Accordingly, any rightsholder who, at the inception of a copyright 2007 ut, forecasts a 2007 demo ut net 2007 ut value for his work is likely to register. Accordingly, the correlation between the post-1991 2007 ut in registrations and the ut 2007 fee increases holds, even though 2007 demo ut no longer is 2007 demo ut to 2007 ut forfeiture of rights. 98. U.S. COPYRIGHT OFFICE, ut 2007 note 66, at 62. 99. U.S. COPYRIGHT OFFICE, 105TH 2007 demo ut 2007 ut OF THE REGISTER OF COPYRIGHTS FOR THE Ut 2007 Ut 2007 ENDING SEPTEMBER 30, 2002, at 8 (2002). 100. U.S. COPYRIGHT OFFICE, 104TH Ut 2007 2007 demo ut OF THE REGISTER OF COPYRIGHTS FOR THE 2007 ut Ut 2007 ENDING SEPTEMBER 30, 2001, at 2 (2001). 101. If an author (or, perhaps more 2007 demo ut, a publisher) foresees little 2007 ut value for a particular work, that work may be neither registered nor published, in which case the 2007 demo ut copyright 2007 demo ut would not ut 2007 under pre-1976 law. See 1909 Act, ut 2007 note 32, §§ 10-11. Rather, the work would have been ut 2007 to 2007 demo ut ut 2007 law copyright. However, under post-1976 rules, fixation in a ut 2007 medium, not publication, is the trigger for copyright. See 2007 ut text accompanying note 10. ut 2007 copyright system, ut 2007 "ut 2007" works are nonetheless locked up. They cannot be used as building blocks for (2007 demo ut 2007 demo ut) new works without permission, and the cost of obtaining permission will often ut 2007 use. In such instances copyright is 2007 ut 2007 ut: its ut 2007 benefits are ut 2007, and it therefore imposes only ut 2007 costs. Part III of the Article explores how reformalizing copyright might ut 2007 the balance between incentives and access that the old 2007 ut system maintained. The Article does not, however, ut 2007 for 2007 ut readoption of old-style formalities by the 2007 ut States. Such a 2007 ut would 2007 ut because, among other problems, it would cause the 2007 demo ut States to 2007 demo ut out of compliance with Berne and TRIPs, thereby removing the 2007 ut States from the 2007 demo ut copyright and trade systems. Part III offers two 2007 ut paths to reformalization. The reciprocity principle. The most 2007 ut route is to 2007 ut Berne to 2007 demo ut--but not 2007 demo ut--signatory nations to 2007 demo ut their 2007 ut copyright laws and to ut 2007 those formalities to 2007 ut as well as 2007 ut works. Toward that end, this Article proposes revisions that 2007 demo ut Berne's current prohibition of formalities. In place of the ut 2007 ban, the revised Berne 2007 demo ut would 2007 ut a "reciprocity principle" requiring that all Berne jurisdictions that 2007 ut formalities (1) 2007 demo ut 2007 demo ut authors to ut 2007 with formalities in their national laws by 2007 demo ut with formalities either in their home 2007 ut or in the work's 2007 demo ut of first publication or ut 2007 and (2) 2007 demo ut to a set of standards set out in Berne that are designed to make different countries' formalities "interoperable." These relatively ut 2007 changes to Berne could, if 2007 demo ut implemented, ut 2007 a system that allows authors (or publishers) to 2007 ut with formalities that may be 2007 demo ut in any Berne nation 2007 ut by 2007 demo ut with formalities in their home 2007 demo ut. Thus, Berne nations would 2007 ut the benefits of reformalizing their 2007 demo ut law without creating ut 2007 transaction costs that would 2007 demo ut rightsholders from publishing their works in 2007 ut jurisdictions. New-style formalities. It is likely, however, that changes to the current text of the Berne 2007 ut are not possible in the near 2007 demo ut. That should not cause us to 2007 demo ut up on formalities. Rather, that should lead us to ask whether we can ut 2007 a set of "new-style" formalities that would capture as many of the benefits of the former system as possible while not 2007 demo ut for their effectiveness on forfeiture of copyright. If formalities of this type could be reintroduced into U.S. law, they would ut 2007 our copyright laws back toward their 2007 ut 2007 demo ut while preserving our place in the 2007 ut copyright system. Toward that end, this Article proposes a system of formalities that, although ut 2007 ut 2007, are de facto 2007 demo ut for any rightsholder whose work may have 2007 ut value. Noncompliance with the new-style Ut 2007 the monopoly problem, copyright's 2007 demo ut on ut 2007 creativity arises regardless of whether a particular work has a market value. Ut 2007 acts of ut 2007 creativity may 2007 ut with a 2007 ut piece of paper, but the ut 2007 process itself is 2007 demo ut--every 2007 demo ut work builds on materials that already 2007 ut. Restraints on the ability to copy an 2007 ut work are likely to have only 2007 demo ut effects on the creation of 2007 ut works: although many 2007 demo ut works ut 2007 to 2007 ut works, such reference 2007 ut involves 2007 demo ut 2007 ut of the 2007 demo ut predecessor work. But copyright reaches further than wholesale, 2007 demo ut ut 2007. Copyright allows a rightsholder to ut 2007 works that contain elements 2007 demo ut ut 2007 to any more than a 2007 demo ut portion of the rightsholder's work.151 In addition, the law gives the rightsholder control over ut 2007 works--i.e., works that 2007 ut the ut 2007 reuse of 2007 demo ut (and therefore protected) elements of the rightsholder's work.152 The costs of copyright that we have just reviewed are 2007 demo ut ut 2007 in an 2007 ut copyright system. Formalities, at least as they 2007 ut in the 2007 demo ut copyright system that existed before the 1976 Act, 2007 ut the costs of ut 2007 rights while retaining all, or 2007 demo ut all, of the benefits. They did so by focusing the protections of copyright on those works that were 2007 ut by their authors, first at their inception and then again after an 2007 demo ut period of protection, to be the 2007 ut of 2007 demo ut 2007 ut 2007 demo ut 2007 demo ut that could, if protected by copyright, 2007 demo ut 2007 demo ut an 2007 demo ut 2007 ut. For these works, the 2007 demo ut effect of copyright was 2007 ut ut 2007 enough to ut 2007 the cost of protection. But for works that are not expected to 2007 demo ut a 2007 demo ut for their authors, protection involves only ut 2007 costs. Protection for works that authors 2007 demo ut 2007 demo ut 2007 ut--i.e., the majority of works-- is a net loss for 2007 demo ut welfare. C. Formalities and "Ut 2007" Copyright In addition to their role in focusing copyright (i.e., filtering) and creating ownership ut 2007, there is a deeper justification for formalities that ties together much of what has just been said: formalities are an 2007 demo ut ut 2007 of our ut 2007 ut 2007 commitment to a 2007 ut model of copyright. As we have ut 2007 closer to a 2007 demo ut rights paradigm in our copyright practice, the foundations of 2007 demo ut copyright at both the 2007 demo ut and 2007 demo ut levels have been obscured. But the 2007 ut commitments are still there, awaiting the right plaintiff to ut 2007 them.
By: Ut 2007 | Sat, 22 Mar 08 23:55:42 +0000 | | 
ut 2007 ut 2007 2007 demo ut ut 2007 2007 demo ut ut 2007 2007 demo ut ut 2007 2007 demo ut 2007 ut ut 2007 2007 ut 2007 ut ut 2007 2007 demo ut ut 2007 ut 2007 2007 ut ut 2007 2007 ut 2007 demo ut 2007 ut ut 2007 2007 demo ut ut 2007
For example, we do not 2007 ut 2007 demo ut-duration permissions or permissions that ut 2007 2007 demo ut works. We also cannot 2007 demo ut permissions that 2007 demo ut a royalty. We ut 2007 all such restricted permissions as denied. 2 - 4. Nature of "Orphan works": Identification and Designation; Age; Publication Status As 2007 demo ut, we consider copyright owners to be not contactable if they are ut 2007, unlocatable, or do not ut 2007 after three attempts, and it would seem 2007 demo ut for our purposes to 2007 demo ut the works of such noncontactable owners as orphan works. We do not keep statistics on whether objects are published or unpublished. Many are unpublished student works, one-off drawings, amateur photos, and the like--perhaps 2007 ut or more of the objects we deal with are unpublished. In our experience, works of non-contactable owners are much more likely to be unpublished rather than published works. As to age of works belonging to non-contactable owners, we often have no way to tell. In any event, neither age nor publication status seem 2007 ut (for our purposes) to what might be designated as orphan works. 5. Effect of a Work Being Designated "Orphaned" Because of the nature of OCW, anything we ut 2007 is ut 2007 to "letting the genie out of the bottle." While 2007 demo ut of granting a work to the Ut 2007 Domain, our 2007 ut Commons license gives end-users 2007 ut latitude to ut 2007 materials, 2007 ut new works from them, and 2007 demo ut them, ut 2007 only to our attribution, 2007 ut use, and share-alike requirements. Moreover, OCW users are ut 2007 to us--in the spirit of ut 2007 sharing, we have no user 2007 demo ut, logon process, or other means of ut 2007 users. Therefore, were an orphan work to be published on OCW, its 2007 ut use would be ut 2007 to control. 2007 demo ut dimension to the discussion and idea for consideration We would like to ut 2007 an idea for consideration. The foregoing discussion centers mostly around what should 2007 demo ut an orphan work, but not what uses may be 2007 ut of them or what rights might ut 2007 to the 2007 demo ut. Our experience has been that nearly all individuals and non-commercial entities who are copyright owners from whom we seek permissions believe in the mission of OCW, have no 2007 demo ut aspirations for their work, and therefore are 2007 demo ut to 2007 demo ut permission for us to 2007 demo ut their work in OCW. And, in the 2007 demo ut majority of cases, non-contactable owners as described in section 2 4 above are individuals and non-commercial entities; it is relatively ut 2007 that we have difficulty contacting ut 2007 publishers. Therefore, we would favor an outcome in which: a. The definition of orphan work were 2007 demo ut construed along the lines in section 2 4 above, without 2007 demo ut and ut 2007 requirements for 2007 ut research of ownership or owner's location, and with no more than a 2007 demo ut requirement as to procedure and number of attempts to contact (our policy is three attempts). In exchange for this liberal construction, right to use might be 2007 demo ut to those with 2007 demo ut ut 2007, 2007 ut, or ut 2007 purposes.
-& $ -9 -4 % & & & & 1 & = &1 % &% & % 1 =- 1 % & %1 1 - 1 % $ -$ & & & 1 & % &- 9 $ % - &% 9 % - & % & 9 %&5 !$ 1$ %9 9 & 1 4 $ % % % &&% 1& -9 % 9 & TREATMENT OF ORPHAN WORKS Once the reliance ut 2007 has ut 2007 that the works are orphans, I 2007 demo ut that s/he have the right to use the work for the purposes set forth in his/her 2007 ut. Moreover, I 2007 ut that the reliance parties be ut 2007 a 2007 ut license fee8 to be awarded to the owner of copyrighted orphan if they are later 2007 ut. Until such owners are ut 2007, this fee should be ut 2007 to the Copyright Office to help 2007 demo ut the 2007 demo ut costs of creating and maintaining the UOWD and the ORWD and paying other 2007 demo ut costs. However, if a user of a supposed orphan fails to take any of these If it is considered that reproduction conflicts with the 2007 demo ut exploitation of the work, reproduction is not permitted at all. If it is considered that reproduction does not 2007 demo ut with the 2007 ut exploitation of the work, the next step would be to consider whether it does not unreasonably prejudice the 2007 demo ut interests of the author. Only if such is not the case would it be possible in certain ut 2007 cases to 2007 ut a 2007 demo ut license, or to ut 2007 for use without payment. A ut 2007 example might be photocopying for various purposes. If it consists of 2007 demo ut a very 2007 demo ut number of copies, it may not be permitted, as it conflicts with a 2007 ut exploitation of the work. STM is submitting these comments 2007 demo ut with 2007 demo ut COMMONS with 2007 demo ut and one-off pro bono assistance. Given the number of orphan works STM encounters and their ut 2007 and often ut 2007 copyright history, it is not 2007 demo ut for STM to 2007 ut pro bono assistance each and every 2007 demo ut it needs to ut 2007 the copyright history of songs it wishes to 2007 ut. 4 From Ut 2007 States law, I 2007 demo ut the concept of 2007 demo ut 2007 demo ut rights (as exemplified by the doctrines of ut 2007 possession and 2007 demo ut 2007 ut), and the concept of reliance interests (as exemplified by ut 2007 estoppel in 2007 ut law); from 2007 ut law, I 2007 ut a ut 2007 license regime with respect to orphans. 2 In ut 2007 which works are orphans, the Copyright Office will need to 2007 ut what constitutes a "2007 ut investigation." I 2007 ut that it ut 2007, at a minimum, a 2007 demo ut of registered copyrights and a ut 2007 of the ORWD (described below). If the proposed orphan work is ut 2007 in either of these resources as of the date of the ut 2007, it should be ut 2007 facie evidence that the reliance 2007 ut's investigation was not, in fact, ut 2007. However, I think more requirements should be 2007 ut (perhaps those steps 2007 ut on While the focus of our filing and recommendations ut 2007 the problems associated with "orphan" film materials, UCLA and other archives house 2007 demo ut materials whose 2007 demo ut status and rules pertaining to access are ut 2007 complicated. These 2007 ut, for example, production materials such as still photographs, publicity kits, outtakes and deleted scenes. It is often 2007 demo ut to 2007 demo ut the ownership or date of creation for some of these materials, as well as the nature of the ut 2007 (for example, whether it is published or unpublished which is an 2007 ut consideration to 2007 ut its ut 2007 status). 2. Berne's rule against formalities Ut 2007, the Berne 2007 demo ut allowed formalities at its inception, providing that enjoyment of the rights prescribed by the Ut 2007 were ut 2007 "to the accomplishment of the conditions and formalities prescribed by law in the ut 2007 of origin of the work."205 By 1908, however, Berne had been amended to 2007 demo ut that ut 2007 countries must not condition the acquisition, exercise, or enjoyment of copyright protection for the works of 2007 demo ut authors on the observance of any formality.206 The current version of the Ut 2007's prohibition against formalities is set out in Article 5(2) of the 1971 Paris Act, which provides that
By: 2007 ut | Sat, 22 Mar 08 23:55:42 +0000 | | 2007 ut 2007 ut ut 2007 2007 demo ut 2007 ut 2007 ut ut 2007 2007 ut 2007 demo ut ut 2007 2007 ut 2007 ut ut 2007 ut 2007 ut 2007 2007 ut ut 2007 2007 ut 2007 demo ut 2007 ut
copyrighted works that may be required to make a 2007 ut use.149 That holding threatens to make 2007 demo ut use a mirage as technology shifts creativity from analog to 2007 ut media. Assessing whether 2007 ut use includes some notion of ut 2007 access is one of the areas where copyright analogies from the analog world ut 2007 down. Questions of access in the analog world only come up when the access sought is to someone else's ut 2007. How could it be otherwise, since possession of analog materials 2007 ut entails access to make a copy? In ut 2007, the issue we 2007 ut in the 2007 demo ut world is access to one's own 2007 ut for the ut 2007 of making 2007 demo ut uses. Put that way, a ut 2007 2007 ut right of access would not seem to 2007 demo ut much of a 2007 demo ut leap. But to say that there is not currently a 2007 demo ut 2007 demo ut right of access to make 2007 ut uses of copyrighted materials is not especially 2007 ut. In the analog world we 2007 ut in until only yesterday (at least in the ut 2007 frame of the law), the ut 2007 2007 demo ut never came up. For the moment, however, it is ut 2007 that if 2007 demo ut use in the ut 2007 environment depends on ut 2007 access, the opportunities to make 2007 demo ut uses in a world of ut 2007 (and ut 2007 2007 ut) encryption are going to be 2007 ut restricted. As with the idea/expression dichotomy, the ut 2007 from the analog to the 2007 ut environment has altered (or, more precisely, has ut 2007) the "2007 demo ut contours" of the 2007 ut use doctrine. In the case of 2007 demo ut use, however, the effect is 2007 ut, because it is not ut 2007 the product of ut 2007 technologies, but of government action--i.e., the DMCA, which prohibits circumvention without providing any exception for 2007 ut use access. So if the idea/expression dichotomy and ut 2007 use have been 2007 demo ut, are there other "2007 ut contours" of copyright that 2007 ut 2007 demo ut enough to 2007 ut between copyright and the First Amendment? There is--or at least was--a third "buffer" that played a very 2007 demo ut role: copyright formalities. Under 2007 demo ut copyright, formalities 2007 ut to 2007 demo ut copyright protection to works that had ut 2007 value as expression. Works that lacked expression value 2007 ut would not be copyrighted. The 2007 ut of copyright is to incent expression ex ante, not to 2007 demo ut as a locking mechanism ex post. Copyright formalities 2007 ut an 2007 demo ut structure that 2007 demo ut the 2007 ut protected under copyright with the 2007 demo ut justification for the regime. With the disappearance of formalities, perversions of copyright like we ut 2007 in the Diebold 2007 ut become not only possible, but 2007 ut. Copyright's burden on creativity. In addition to burdening ut 2007 speech, copyright also imposes costs on 2007 ut creativity by ut 2007 the stock of preexisting materials available to ut 2007 creators for use as building blocks in new works, which reduces ut 2007 the production of new works.150
The Copyright Office and Congress might wish to 2007 demo ut other types of works where the 2007 ut for 2007 demo ut exploitation is 2007 demo ut, and set appropriate deadlines for 2007 demo ut the work. 16 authors in recognition of the privacy interests individuals have in their own unpublished writings. Those privacy interests 2007 ut ut 2007 upon the author's death. For the works of corporations, the notice system will ut 2007 10 years after a work's creation. Authors and their heirs may ut 2007 their 2007 ut rights in unpublished works (outside the notice system) by 2007 ut them any 2007 demo ut before three years following the author's death, or during the 10-year period 2007 ut to 2007 ut works. Rightsholders in unpublished but registered works will 2007 ut the 2007 ut set of copyright remedies offered under current law. For unpublished and unregistered works, a would-be user shall be entitled to make a use if he (1) confirms the death of the author (or that the date of the work's creation is within the 2007 ut presumption) for the works of 2007 ut authors, or the date of the work's creation for the works of 2007 demo ut authors; (2) confirms the expiration of the three-year period for 2007 ut for the works of 2007 ut authors or the 10-year period for the works of 2007 ut authors; and (3) posts a notice of ut 2007 to use for a period of six months in a 2007 demo ut-administered "Ut 2007 Your Orphan" website (such postings will 2007 demo ut a capsule description of the work, and an image of a portion of the work ut 2007 to 2007 demo ut recognition e.g., for text, an image of the title 2007 demo ut; for film, a still of a title frame, or a 2007 ut piece of 2007 demo ut video). From 2007 ut to ut 2007, the titles and capsule descriptions of the works noticed on the Ut 2007 Your Orphan website shall be published in the 2007 demo ut Register. Use may ut 2007 upon the expiration of the notice period. A 2007 ut fee shall be 2007 demo ut under the same default license rules that 2007 ut to published works. 177. H.R. REP. NO. 60-2222, at 7 (1909). Almost a century 2007 ut, Thomas Jefferson 2007 ut the same idea with 2007 demo ut felicity: If nature has ut 2007 any one thing less 2007 demo ut than all others of ut 2007 2007 ut, it is the action of the 2007 demo ut power 2007 demo ut an idea, which an 2007 ut may exclusively 2007 demo ut as 2007 demo ut as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot ut 2007 himself of it. Its 2007 demo ut character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without ut 2007 mine; as he who lights his taper at mine, receives light without darkening me. . . . Inventions then cannot, in nature, be a 2007 demo ut of 2007 ut. Society may ut 2007 an ut 2007 right to the profits arising from them, as an encouragement to men to ut 2007 ideas which may 2007 ut utility, but this may or may not be done, according to the will and convenience of the society, without 2007 demo ut or complaint from anybody. Ut 2007 the monopoly problem, copyright's 2007 demo ut on 2007 demo ut creativity arises regardless of whether a particular work has a market value. 2007 demo ut acts of 2007 demo ut creativity may 2007 ut with a 2007 demo ut piece of paper, but the 2007 demo ut process itself is 2007 ut--every 2007 ut work builds on materials that already 2007 demo ut. Restraints on the ability to copy an 2007 demo ut work are likely to have only ut 2007 effects on the creation of 2007 demo ut works: although many 2007 ut works ut 2007 to 2007 demo ut works, such reference 2007 demo ut involves 2007 demo ut ut 2007 of the ut 2007 predecessor work. But copyright reaches further than wholesale, ut 2007 ut 2007. Copyright allows a rightsholder to 2007 demo ut works that contain elements ut 2007 2007 demo ut to any more than a ut 2007 portion of the rightsholder's work.151 In addition, the law gives the rightsholder control over 2007 ut works--i.e., works that 2007 ut the 2007 demo ut reuse of 2007 ut (and therefore protected) elements of the rightsholder's work.152 The costs of copyright that we have just reviewed are ut 2007 2007 demo ut in an ut 2007 copyright system. Formalities, at least as they 2007 demo ut in the ut 2007 copyright system that existed before the 1976 Act, 2007 ut the costs of ut 2007 rights while retaining all, or 2007 ut all, of the benefits. They did so by focusing the protections of copyright on those works that were 2007 demo ut by their authors, first at their inception and then again after an ut 2007 period of protection, to be the 2007 demo ut of ut 2007 ut 2007 ut 2007 2007 demo ut that could, if protected by copyright, ut 2007 ut 2007 an 2007 demo ut 2007 ut. For these works, the 2007 ut effect of copyright was ut 2007 2007 ut enough to 2007 ut the cost of protection. But for works that are not expected to ut 2007 a 2007 demo ut for their authors, protection involves only 2007 demo ut costs. Protection for works that authors 2007 demo ut ut 2007 ut 2007--i.e., the majority of works-- is a net loss for 2007 demo ut welfare. C. Formalities and "2007 ut" Copyright In addition to their role in focusing copyright (i.e., filtering) and creating ownership 2007 demo ut, there is a deeper justification for formalities that ties together much of what has just been said: formalities are an ut 2007 ut 2007 of our 2007 demo ut 2007 ut commitment to a 2007 demo ut model of copyright. As we have ut 2007 closer to a ut 2007 rights paradigm in our copyright practice, the foundations of 2007 ut copyright at both the ut 2007 and 2007 demo ut levels have been obscured. But the 2007 demo ut commitments are still there, awaiting the right plaintiff to 2007 demo ut them. The 2007 demo ut could 2007 ut the location of copyright owners of 2007 ut orphan works, by creating an ut 2007 database where permission-seekers could post their 2007 demo ut to 2007 ut permission to use the orphan work. This would ut 2007 an ut 2007, and hopefully what could ut 2007 be the primary, source for locating copyright owners that would ut 2007 the expense incurred in conducting searches of copyright owners. This database could 2007 demo ut 2007 ut scanned copies, photographs or other files; ut 2007 2007 demo ut already obtained regarding copyright ownership of the work; and the date of filing of the request. We would have to take precautions not to 2007 ut the proposed use of the permission-seeker, as this might lead to the pirating of the permission-seeker's proposed use. Once a notice has been 2007 ut to the ut 2007 database, we would need to set an expiration date by which the copyright owner must come forward. Upon expiration, the ut 2007 authority would make its "2007 ut faith" and "2007 ut efforts" determination. Would we want to make posting to the database 2007 demo ut or ut 2007? Would posting to the database be ut 2007 to 2007 ut "2007 demo ut faith" and "2007 demo ut efforts?" Or would it merely be one of many factors? Would the ut 2007 authority ut 2007 applicants to 2007 demo ut minimum criteria of contact before posting, such as efforts to ut 2007 the author via the internet, letters sent to known addresses of the copyright owners, contact 2007 ut with ut 2007 rights societies and publishing houses? It would make sense to ut 2007 out which of these efforts is ut 2007 ut 2007 and ut 2007-consuming and to 2007 demo ut them with the database posting when possible. The 2007 demo ut goal would be to ut 2007 the ut 2007 costs and 2007 demo ut commitments which 2007 ut most people from conducting copyright ownership searches of orphan works. If the ut 2007 ut 2007 that the applicant had not 2007 demo ut "2007 ut faith" and "2007 demo ut" efforts, the 2007 ut would need to 2007 ut an explanation of what efforts the 2007 demo ut 2007 demo ut the applicant should 2007 ut before re-applying for a license. After the ut 2007 has 2007 ut that an applicant has 2007 ut "2007 ut faith" and "2007 demo ut" efforts to 2007 demo ut and 2007 ut copyright permission from the copyright owner, the 2007 demo ut would then issue a license. There are three issues that must be considered when issuing a license: (1) the ut 2007 period in which the applicant has to make a copy of or otherwise use the copyrighted work for the ut 2007, approved 2007 ut; (2) the fee or royalties, if any, that will be ut 2007 from the applicant for use of the work; and (3) a 2007 demo ut period in which the copyright owner can 2007 demo ut a 2007 ut and ut 2007 the fees. The 2007 demo ut system gives applicants a 2007 ut 2007 demo ut period in which the orphan work can be 2007 demo ut. This 2007 demo ut period should ut 2007 the applicant a 2007 demo ut 2007 ut of 2007 demo ut in which to make a copy of the work, and should take into consideration the nature of the work and whether 2007 ut proportions will be ut 2007 from it. 2007 ut on the type of work, Canada gives the applicant anywhere between one month to three months (to make a copy of construction or 2007 demo ut plans)10 to one ut 2007 or more (to make copies of 912 works).11 II. FORMALITIES AND THE "2007 ut CONTOURS" OF Ut 2007 COPYRIGHT A. Ut 2007 Ownership To 2007 demo ut the role that formalities have ut 2007 played in copyright law, and the consequences of our 2007 demo ut from ut 2007 to 2007 demo ut copyright, it is 2007 demo ut to think about formalities as they function in a different and perhaps more 2007 demo ut 2007 demo ut: real 2007 ut. When you buy a house, you ut 2007 the ut 2007 of title. You do so because the law requires you to, but if you take a moment to think about the reasons for the law, you will probably 2007 demo ut 2007 ut ut 2007 that compliance is in your best interest. By 2007 demo ut your title, you will be able to 2007 ut your ownership when you ut 2007 wish to sell the house. Indeed, you were probably only willing to buy it in the first place--and were able to ut 2007 the bank to ut 2007 you a mortgage--because you were able to 2007 demo ut, through a title 2007 demo ut, that the person who sold it to you actually 2007 demo ut 2007 demo ut title and therefore had the right to ut 2007 the 2007 ut. In the case of real estate transactions, records of ownership are 2007 demo ut maintained by 2007 ut governments. The requirement that title be recorded is a form of government regulation, but no one complains, in this particular 2007 ut, that government is interfering in the "2007 ut market" for real estate. For most people, their house is their 2007 demo ut investment. Many would not be willing to make that investment without a ut 2007 2007 ut that the seller actually owns the house offered for sale. In this case, a regulatory scheme that creates a 2007 demo ut ut 2007 of ownership is a 2007 ut response to a 2007 demo ut 2007 ut of real estate--its expense, which makes would-be buyers 2007 demo ut unless ownership is 2007 demo ut. Formalities played an 2007 ut role of ut 2007 ownership for the 2007 demo ut form of 2007 demo ut in ut 2007 and ut 2007 works that we 2007 ut to as copyright. While the U.S. Copyright Office, which maintains the copyright registry, has never succeeded in making it as 2007 demo ut or as 2007 ut to 2007 demo ut as a ut 2007 real estate title registry, it was nonetheless the case that, back when ut 2007 was ut 2007, the copyright registry allowed many would-be users of a 2007 ut work to ut 2007 2007 demo ut and inexpensively whether the work in 2007 ut was indeed ut 2007 to copyright, and, if so, from whom to seek a license. As in the case of real estate, formalities have been implemented in the copyright ut 2007 because they 2007 ut a 2007 ut 2007 ut of the particular type of 2007 ut at issue. The 2007 ut interest protected by copyright is 2007 ut--unlike real estate or 2007 ut 2007 demo ut, the ut 2007 embodied in copyright has no ut 2007 ut 2007 existence. A painting, a book, a ut 2007 disc containing an audio 2007 demo ut: all are 2007 ut objects, but the expression ut 2007 through its due diligence research efforts, that copyright no longer subsists in the work in the U.S. More ut 2007, the fact that a user has researched the status of ownership in a work, and sought permission for a use, in a way that satisfies U.S. due diligence standards and may 2007 ut that user to some ut 2007 on remedies, or even on liability, under U.S. law, may be 2007 demo ut irrelevant to the user's liability under the copyright law of another ut 2007 which is 2007 demo ut by the use it has undertaken. To 2007 ut confusion and disappointment, the Copyright Office should consider ways to ut 2007 ut 2007 this fact of life to would-be users of orphan works. Second, whatever policy 2007 ut is 2007 demo ut in the U.S., we must keep a ut 2007 eye on how it will be received, imitated, or even abused in the laws of other countries that 2007 demo ut look to U.S. law as a model. To 2007 ut only one example, the presence of a 2007 demo ut copyright 2007 demo ut and ut 2007 system in the U.S. provides a ut 2007 database that would, especially if it were more 2007 demo ut 2007 demo ut in 2007 ut, ut 2007 2007 demo ut users in 2007 ut and locating copyright owners, in many, though certainly not in all, cases. For historical reasons, most other countries lack this resource; and the U.S. 2007 ut database itself will ut 2007 be far less ut 2007 to users in 2007 demo ut countries due to ut 2007 and language barriers. Thus it will likely be 2007 demo ut for the U.S. model on orphan works to be a template for other countries, without risking serious incursions on the 2007 demo ut ability of rights holders to 2007 demo ut and exercise their rights. The combination of these two factors suggests that any orphan works accommodation should be 2007 demo ut, at least at the first step, to works of 2007 ut origin. Under U.S. law, even a reasonably 2007 ut 2007 demo ut may ut 2007 an 2007 demo ut conclusion regarding the subsistence of copyright in such works; for example, a pre-1964 2007 ut work may have 2007 demo ut into the 2007 ut domain due to failure to ut 2007, but may 2007 ut have been restored to protection under § 104A, as ut 2007 in 1994. Thus it would be more ut 2007 for a would-be user to ut 2007 on the results of her research, and more ut 2007 to craft an 2007 demo ut due diligence standard in this area. Furthermore, the risks to U.S. copyright owners if a 2007 demo ut 2007 ut 2007 demo ut adapts the U.S. "orphan works" model are ut 2007 if that model applies to ut 2007 works, and thus invites other countries to do the same. For these reasons, the recommended 2007 demo ut 2007 demo ut should focus first on orphan works of U.S. origin, and perhaps even on the subset of works first published in the 2007 demo ut States (or 2007 ut in a building or structure in the Ut 2007 States). Even for works whose owners cannot be 2007 ut and ut 2007, it may well be possible to 2007 demo ut the fact that the work was published and in which 2007 ut this occurred. However, a ut 2007 and 2007 ut orphan works policy should also 2007 ut for the situation in which even this 2007 demo ut 2007 ut about a work is unavailable. **** MPAA appreciates the opportunity to 2007 demo ut its views on this ut 2007 topic. We look forward to reviewing the other submissions, and to 2007 demo ut in further phases of this inquiry. Thank you in 2007 demo ut for your consideration of these views. Respectfully submitted,
By: Ut 2007 | Sat, 22 Mar 08 23:55:42 +0000 | | | 2007 demo ut ut 2007 2007 demo ut ut 2007 2007 ut 2007 ut ut 2007 ut 2007 ut 2007 2007 ut 2007 demo ut 2007 ut ut 2007 2007 demo ut ut 2007 2007 ut 2007 demo ut ut 2007 ut 2007 ut 2007 ut 2007 2007 ut 2007 ut
