The Rebirth of Copyright As an Opt-In System? – The Media Institute

“For most of the history of Anglo-American copyright law, copyright was an opt-in system: Authors had to jump through certain regulatory hoops if they wanted to prevent others from copying their works without consent.  These threshold formalities included registering their works with a government agency, affixing a notice to published copies, depositing exemplars with a centralized library, and more.  A failure to comply with the requirements usually meant a diminution in the authors’ copyright entitlement – and in some cases a wholesale forfeiture, under which the works would pass immediately into the public domain.

After some 200 years, however, U.S. copyright abandoned its formal requirements.  Beginning in 1976 and culminating in 1989, Congress responded to complaints from authors (who had sometimes lost protection due to what they viewed as a technicality) and to pressure to join the international copyright community (which forbade most formalities).  Copyright law accordingly underwent a conversion from opt-in to opt-out.

As a result, copyright protection now arises by operation of law, without any action by the author.  As long as a work contains a modicum of originality and is fixed in some tangible form, copyright automatically protects it, and authors must affirmatively disclaim the entitlement if they don’t want its protection.  And these threshold requirements of originality and fixation are incredibly minimal, such that every reader of this essay is probably the owner of hundreds, and quite possibly thousands, of copyrights – in everything from diary entries to doodles….

Of course, any opt-in proposal would face a number of political obstacles, including the fact that predicating copyright protection on any formality (at least for foreign works) is inconsistent with the international copyright conventions to which the United States is a party.  But the Internet does not stop at the border; if opt-in makes sense here, it will make sense abroad as well.  When the United States and its trade partners are done figuring out what to do with Google Books, then, they should consider a return to copyright’s roots.  Make copyright opt-in once more….”