May 31, 2019

Analysis

In 1989, after refusing to do so for over 100 years, the United States finally joined the Berne Convention, the leading international copyright treaty. By signing, the US transformed its copyright system from a formalities-laden, opt-in system of protection to a formalities-free, opt-out system of protection. In short, this transformation meant that copyright protections began automatically attaching to works at the moment of their creation, rather than after formal registration procedures had been completed.

Then, in 1991, the Supreme Court’s decision in Feist clarified the contours of copyrightability under US copyright law. The Court noted that copyright “requires independent creation plus a modicum of creativity,” but explained that “the requisite level of creativity is extremely low; even a slight amount will suffice.” Even seemingly trivial and remarkably simple expressions receive copyright protections.

Taken in tandem, these two developments yielded a copyright system under which, as copyright scholar Paul Goldstein put it, “the most casual expression—even a quickly scribbled shopping list—automatically gets copyright protection for the full copyright term.”1 Since this system arose, many commentators have lamented the implications of Berne and Feist, arguing that the current copyright regime is a poor fit for modern times—protecting too many works and works too trivial to merit protection.2

This post adopts the unorthodox position that these developments in copyright law are, in fact, particularly well-suited for the digital age. An obvious impact of the internet is that for the first time in history most citizens became creators and publishers of “fixed expressions”: the subject matter of copyright. These user-created expressions are ubiquitous online: photos, videos, reviews, social media posts, websites, blogs, etc.—all of these count as fixed expressions. Moreover, these sorts of expressions that in a previous time may have indeed been quite trivial at scale are today increasingly valuable in the aggregate—both socially and economically.

With these thoughts in mind, I argue for a refocusing of copyright theory and policy in light of the fact that copyrightable works created by individual users provide the valuable raw materials that power our information economy and pervade our digital landscape. When we take into account the immense importance of user-created expressions online, the chorus of criticisms that have labeled Feist and Berne as antiquated holdovers from a pre-internet age appears increasingly misguided.

Berne’s Elimination of Formalities & America’s Initial Resistance

The Berne Convention is the oldest international treaty that deals with the protection of copyrights, and, as Reagan noted upon America’s joining, it provides “the highest internationally recognized standards for the protection of works of authorship.” The Convention dates back to 1886 and is currently comprised of 176 signatory nations. But until 1989, the United States had refused to join the Convention as a Berne Union member.3

The United States’ abstention from the Berne convention highlights the longstanding idiosyncrasies of the US copyright regime in relation to that of its international neighbors. Former Register of Copyrights Barbara Ringer4 wrote that US copyright policy’s historical “role in international copyright was marked by intellectual shortsightedness, political isolationism, and narrow economic self interest.” And, as professor Jane Ginsberg explains, the United States’ longstanding “non-membership in the Berne Convention was embarrassing […] because the US was the only non-Unionist Western Country.”

One of the primary reasons for this discord centered on the issue of whether formalities should be a prerequisite for copyright protection. Formalities included, among other technicalities, requirements of notice in the form of the © symbol before publication; requirements of registration with the Copyright Office; and requirements of renewal of registration to enjoy a second period of copyright protection. During the mid-nineteenth century, “while in the US formalities were retained, in Europe, they were gradually softened and limited and in the end abolished altogether.”5

There were a number of reasons that European governments had antipathy toward copyright formalities, including the following desires:

1. To reduce the obstacles imposed on international trade in copyrighted works created by the hodgepodge of copyright formalities amongst various nations.6
2. To promote the “anti-discrimination norm, introduced to avoid any kind of hidden disadvantages for foreign authors.”7
3. To further the Berne Convention’s aspirational goals of creating a system of “universal international authors’ rights.”8

Additionally, throughout this period, Europe saw the emergence of the personality theory of copyright take hold in debates over authorship rights. This theory conceived of a right “against any taking of the personal and unique form in which the author had expressed his thoughts or ideas.” Copyright scholar Stef van Gompel has traced the philosophical roots of this theory back to Immanuel Kant: “Kant believed that it is a man’s innate right to communicate his thoughts to the public. Therefore, authors should be vested with some right to control when, how, and by whom these thoughts, as expressed in their writings, are publicly disseminated.” It followed, for Kant, that “in parallel to a property right in the book as a physical object (‘ius in re’), authors have an innate right vested in their own person (‘ius personalissimum’).”9

These philosophical ideas had influence on European lawmakers, and throughout the 19th Century the Berne Convention aimed to achieve “the eradication of superfluous and burdensome formalities or procedural barriers”10 to rights of authorship. Ultimately, the 1908 Berne Revision outlawed formalities altogether for member nations.

Throughout late-19th Century Europe, “there was a growing consensus that the existence of copyright should not be subject to formalities and that failure to comply with formalities should never be the occasion of a loss of copyright.”11 By contrast, the United States continued to make “punctilious compliance with multiple statutory formalities a condition of both the existence and the enforcement of copyright.”12 This discord between the US and Europe continued for more than 80 years.

A Growing American Aversion to Formalities

As the 20th Century progressed, criticism of formalities began to emerge in the US as well. Much of this aversion emerged from experience. Failure to comply with US copyright law’s rigid procedures and arcane technicalities often yielded draconian punishments. A particularly harsh penalty was that failure to comply with technical formalities led to forfeiture of copyright. As professor John Kernochan has noted, the “sanction of forfeiture, in particular, is barbaric in its impact (i.e., it may wipe out the entire value of years of creative effort; it is disproportionate to any ends served and should be done away with).”13

But such formalities proved especially “burdensome and costly” for individual authors and creators—particularly the legally unsophisticated or inexperienced individual.16 Owing to the penalties of these burdens, the notion began to emerge that there was something “unfair that the individual authors may lose protection because of mere ignorance, innocent mistakes or careless failure to complete formalities.”17

Thus, the US formalities-laden copyright system proved inequitable. Throughout the nineteenth-century, US copyright law predicated copyright protection on punctilious compliance with arcane legal formalities. As with other realms of the law, when compared to lawyered-up repeat players, legally inexperienced individuals faced an exceptionally uneven playing field: under the United States’ pre-Berne copyright regime, sophisticated corporate entities had a clear, nearly burden-free advantage on the creative class of individual, under-resourced copyright creators.

As the 20th Century drew to a close, America’s longstanding opposition to the international community’s abolition of copyright formalities began to soften.

The US Implements Berne: The Age of Instant Authorship

In response to these developments, many copyright scholars and commentators began to champion the abolition of copyright formalities in the US. In 1988, Congress unanimously approved the Berne Convention Implementation Act, meaning that qualifying works would receive copyright protections instantly from the moment of their creation. The result was a radical expansion of the number of copyrighted works.

As the world began transitioning into the digital age, “copyright formalities had been abolished in practically all countries” around the globe.18 And the US had finally joined the international community in providing copyright protections automatically to a work from the moment of its creation, ushering in the age of instant authorship.

Feist‘s Modicum of Creativity Standard

In 1991, three years after the US finally signed onto the Berne Convention, the Supreme Court “engaged in a fundamental re-examination and reformulation of the concept of originality applicable to all works of authorship.”19

Dating back to 1903, the Supreme Court had articulated that copyright includes “all forms of writing, printing, engravings, etchings, etc., by which the ideas in the mind of the author are given visible expression.” The current Copyright Act echoes this broad subject matter of copyright: “Copyright protection subsists […] in original works of authorship fixed in any tangible medium of expression […] now known or later developed, from which they can be perceived, reproduced, or otherwise communicated.”

In Feist the Court further clarified the contours of copyrightability under US law. The case involved two phonebook companies who litigated over one company’s copying the names and phone numbers from the other company’s phonebook. The copyrightability of the phonebook itself was conceded, leaving the discrete, disputed question over the copyrightability of the purely factual collection of names and phone numbers itself. Although the Supreme Court held that there was no copyright in the purely factual compilation, the Court clarified the extremely liberal and permissive nature of copyrightability: “[T]he requisite level of creativity is extremely low; even a slight amount will suffice.”

The Court went on to note the ease with which most works meet this permissive standard: “The vast majority of works make the grade quite easily, as they possess some creative spark, no matter how ‘crude, humble, or obvious’ it might be.” Creativity, thus, “as a term of art in copyright law […] is pegged at the lower end, if not the bottom, of the spectrum of its wide-ranging common usage.”20

Thus, Feist both defined the contours of the contemporary standard of copyrightability clearly and handily dismissed several misconceptions about copyrightability. Copyrightability does “not include requirements of novelty, ingenuity or esthetic merit.”21 Nor does it, as Robert Kasunic notes, require “contributions of time and effort” or labor. Feist decisively disavowed such considerations as irrelevant to questions of copyrightability. The Supreme Court explicitly dismissed the sweat-of-the-brow theory of copyright, embraced by several lower courts, which had considered investments of time and effort in determinations of copyrightability.

The takeaway from Feist is that the standard for copyrightability is extremely permissive. Any expression of the mind that is fixed in a tangible medium receives copyright protections provided that it meets two requirements: 1) that it is original (“in the sense that it’s not copied”)22 & 2) that it displays a modicum of creativity. And—because of Berne—those copyright protections attach automatically at the moment of creation.

Criticism of Feist & Berne in the Digital Age

By the turn of the 21st century, many scholars began criticizing the tandem effect of Feist and Berne. Berne had made copyright an opt-out system under which works received copyright from the moment of their creation, thereby radically expanding the number of protected works. And Feist had set the standard of creativity so low that even the most trivial expressions qualified for copyright.

The resulting criticism centered both on the lack of formality requirements and the trivial nature of works protected. In a paradigmatic example, Lawrence Lessig lamented in 2001 that: “There is no registration requirement—every creative act reduced to a tangible medium is now subject to copyright protection. Your email to your child or your child’s finger painting: both are automatically protected.”23

The chorus of criticism has remained robust.24 Following criticisms like Lessig’s, scholars and commentators have argued variously that copyright is overprotective and that instant authorship is an antiquated holdover of the pre-internet age. Pamela Samuelson identifies the problem as being one of volume: there are simply too many copyrights. She writes, “virtually all of the photographs on Flickr, videos on YouTube, and postings in the blogosphere, as well as routine business memos and email messages, are original works of authorship that qualify for copyright protection automatically by operation of the law.”

A Defense of Feist, Berne, and Copyright in the Internet Age

The advent of the internet has revolutionized nearly every corner of American life, and copyright law is certainly no exception. An often-overlooked consequence of the internet is that for the first time in history most Americans are now regular creators and publishers of works of legal authorship. Each day ordinary citizens create copyrighted works and publish them for public consumption, contributing countless works to the digital landscape. User-created expressions permeate the internet in the form of photos, videos, reviews, social media posts, blogs, websites, and so on. Technology has allowed for a vast democratization of authorship. More people are creating and contributing more works to society than ever before.

Despite these developments, discussions of copyright theory and policy have largely ignored how this explosion of expression and the democratization of authorship interacts with copyright law.

Most people do not think of themselves as copyright authors, and scholars continue to treat copyright as a tool purely benefitting industry players. Indeed, copyright is often assumed to be and spoken of as contrary to the public’s interest. (For an example of this discourse, see James Boyle’s analogy to the enclosure movements: “The old limits to intellectual property rights—the antierosion walls around the public domain—are also under attack.”)

Yet the scholarly discourse gives insufficient attention to the fact that most people in 21st Century America are not just consuming copyrighted works, but are themselves copyright content creators. At best, these scholars only acknowledge the public as copyright creators to dismiss them as creators of trivial works, undeserving of copyright protections.

In thinking about the state and nature of criticisms of our copyright regime, it’s worth pausing to ask why the radical democratization of authorship should not be accompanied by an expansion in the number of people and percentage of the public holding intellectual property interests. As both the number and importance of individual copyright creators continues to grow, it is worth questioning the wisdom of any proposal to return to some form of arcane legal formalities that have historically disadvantaged the individual creator. We can consider copyright proponent Victor Hugo’s words on the subject: “Literary property is in the public interest. All the old monarchic laws have rejected, and continue to reject literary property. To what end? In order to enslave. The writer who is an owner [of his literary property] is a writer who is free.”25

Our context has changed: While seemingly trivial in many cases, user-created works—the lifeblood flowing through the veins of the internet—are extremely valuable in the aggregate.

User-created works make possible and valuable the world’s most successful and significant internet services, such as Google, Facebook, Twitter, YouTube, LinkedIn, and so on. All of these web 2.0 companies are built upon users’ contributions of their creative and expressive works. For example, in 2013, “people uploaded 350 million images to Facebook each day.” Regardless of the perceived triviality of many of those photos, in aggregate these images are both socially and economically significant, comprising the invaluable raw materials of one of the most powerful companies in the world. And in other businesses, not built around sharing and publishing, user-created content serves as the data inputs necessary for algorithms to perform particular tasks, the results of which are aggregated into salable products.26

The wealth generated from this activity flows to those who control and aggregate its products, rather than, as Jaron Lanier puts it, “those who provide the ‘raw materials.'”27 What should be a fundamental insight into the role of user-generated content on the internet is all but ignored in current debates surrounding copyright, which prefer to treat individual user contributions as insignificant, rather than essential to the internet and the digital economy.

To undo the developments of Feist and Berne—as copyright critics implicitly advocate—would disenfranchise the individual citizen of their intellectual property rights and would shrink the percentage of intellectual property owners, despite their significant contributions to the digital economy.

Conclusion

The impulse to discredit seemingly trivial and unsophisticated expressions as unworthy of copyright protection is myopic given the increasing importance such creative contributions have to society, the economy and individual expression.

Indeed, I argue, the permissive, liberal copyright regime established by Berne and Feist is particularly well-suited to promote humanistic ideals and individual dignity in the digital age. Such a legal regime is well suited to govern a society in which most citizens are copyright creators, in which the individual copyright creator has become unprecedentedly important, and in which authorship has been radically democratized across society.

Current debates about copyright theory and policy should account for the fact that in 2019, ordinary citizens are creating and contributing countless copyrighted works to the digital landscape every day. That development supports a copyright regime that empowers everyday citizens with property rights in their creations and frees those property rights from the barriers of arcane legal formalities.

In the digital age, it is worth considering that a copyright regime that has expanded authorship rights dramatically might just be a good thing.

Contemporary debates about social policy often express unease with the potential for mass inequality posed by the rapid extension of technology throughout society. Copyright law did not develop to intentionally address these concerns, but we can see how it could be well situated to help address them. Digital copyrights are naturally well-distributed, economically important property interests, but remain under-appreciated, underutilized, and under-monetized by common producers.

As attention is starting to be paid towards issues such as data ownership, data privacy, and inequality in the digital age, existing copyright doctrine might provide an avenue to advancing the aims of digital equity. Although the digital age is nascent and the precise institutions to permit everyday individuals to capitalize on their intellectual property are lacking, Berne and Feist are the essential predicates to a more fundamentally fair copyright system that benefits everyday individuals.

1. Goldstein, Paul. Copyrights Highway: From Gutenberg to the Celestial Jukebox. Stanford, CA: Stanford Law and Politics, 2003, 13.
3. Hatch, Orrin G. (1989) “Better Late Than Never: Implementation of the 1886 Berne Convention,” Cornell International Law Journal: Vol. 22 : No. 2 , Article 1.
4. Barbara Ringer is a remarkable figure in the history of U.S. Copyright law. She was the first woman to serve as Register of Copyright, a position that she secured only after successfully suing for sex discrimination after having been improperly passed over for the job. She was also the lead architect of the Copyright Act, succeeded in codifying fair-use in statute, and advocated for making the Copyright Act among the first pieces of federal legislation to include dual gender pronouns. For an overview of her legacy, see this 2014 article by Amanda Levendowski.
5. Gompel, Stef Van. Formalities in Copyright Law: An Analysis of Their History, Rationales and Possible Future. Alphen Aan Den Rijn: Kluwer Law International, 2011, 89.
6. See: Samuelson, “Too Many Copyrights,” at 30: “One of the goals of the Berne Union was to overcome obstacles to international trade in copyrighted works such as burdens of complying with multiple formalities.”
7. De Rosnay, Melanie Dulong, and Juan Carlos De Martin, editors. The Digital Public Domain: Foundations for an Open Culture. 1st ed., vol. 2, Open Book Publishers, at *25-26.
8. Ginsburg, Jane C., “Berne-Forbidden Formalities and Mass Digitization” (April 28, 2016). Boston University Law Review, Vol. 96. For a discussion of Victor Hugo’s role at the Literary Congress of 1878 in promoting the notion of author’s rights, see Deven Desai’s “The Life and Death of Copyright” (August 28, 2012). Wisconsin Law Review, Vol. 2011, No. 2, 2011.
9. Gompel: “Les Formalités Sont Mortes, Vive Les Formalités! Copyright Formalities and the Reasons for Their Decline in Nineteenth Century Europe“, in: Privilege and Property: Essays on the History of Copyright, R. Deazley, M. Kretschmer & L. Bently, eds., p. 157, Cambridge: Open Book Publishers, 2010.
10. Hatch: “Better Late Than Never: Implementation of the 1886 Berne Convention”
11. Gompel: Formalities in Copyright Law: An Analysis of Their History, Rationales and Possible Future, 100.
12. Ginsburg: “Berne-Forbidden Formalities and Mass Digitization”
13. Comments of John M. Kernochan (1986), reprinted in Final Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention, 10 COLUM.-VLA J.L. & ARTS 513 app. B at 685, 689 (1986).
14. For a discussion of the fascinating legal saga surrounding the Bluebook, see e.g. Leung, Peter: “Is Copyright an Obstacle to Properly Cited Justice?”
15. The Academy ultimately successfully appealed that decision. See: Academy of Motion Picture Arts & Scis. v. Creative House Promotions, Inc., 944 F.2d 1446, 1452 (9th Cir. 1991)
16. In “What Contracts Cannot Do: The Limits of Private Ordering in Facilitating a Creative Commons,” Niva Elkin-Koren notes that formalities “could actually discriminate against individual creators who are unable to carry the burden of legal counseling and registration.” For more on this, see Julia D. Mahoney, “Lawrence Lessig’s Dystopian Vision,” where she argues “all formalities impose burdens, and that those burdens are experienced most keenly by the inexperienced and uneducated.”
17. Gompel: Formalities in Copyright Law: An Analysis of Their History, Rationales and Possible Future, 10.
18. Ibid, 2.
19. Howard B. Abrams, “Originality and Creativity in Copyright Law,” 55 Law & Contemporary Problems, 5 (1992).
20. Ibid, 17.
21. H.R. REP. NO. 94-1476, at 51 (1976)
22. Birdy, Annemarie. “The Evolution of Authorship: Work Made By Code,” 39 Columbia. Journal of Law & Arts 395, 2016, 398.
23. Lessig, Lawrence. The Future of Ideas: The Fate of the Commons in a Connected World. New York: Random House, 2003.
24. See e.g. Jane C. Ginsburg, “With Untired Spirits and Formal Constancy: Berne Compatibility of Formal Declaratory Measures to Enhance Copyright Title- Searching,” 28 Berkeley Tech. L. J. 1583, 1584 (2013) (“Formalities are back in fashion […] formalities’ confiscatory consequences, once perceived as barbaric,’ are to be celebrated.”); Jane C. Ginsberg, “The US Experience with Copyright Formalities,” Columbia Journal of Law and the Arts, vol. 33 No. IV (2010) (discussing the beneficial, information-providing role of formalities); Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, New York: Penguin Press, 2004, pp. 287-90; Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy, New York: Penguin Press, 2008, pp. 260-65; William M. Landes and Richard A. Posner, “Indefinitely Renewable Copyright,” University of Chicago Law Review, 70 (2003), 471-518; Cecil C. Kuhne III, “The Steadily Shrinking Public Domain: Inefficiencies of Existing Copyright Law in the Modern Technology Age,” Loyola Law Review, 50 (2004), 549-563; Kevin A. Goldman, “Limited Times: Rethinking the Bounds of Copyright Protection,”University of Pennsylvania Law Review, 154 (2006), 705-740; and Pamela Samuelson, “Preliminary Thoughts on Copyright Reform,” Utah Law Review (2007), no. 3, 551-71.
25. Hugo, Victor. Société des Gens de Lettres de France (1897: 106). In: Jane C. Ginsburg, “From Hypatia to Victor Hugo to Larry and Sergey: ‘All the world’s knowledge’ and universal authors’ rights,” British Academy Law Lecture, 2012.
26. Lanier, Jaron. Who Owns the Future? New York: Simon & Schuster, 2013. (“A multitude of examples of translations made by real human translators are gathered over the Internet. These are correlated with the example you send for translation. It will almost always turn out that multiple previous translations by real human translators had to contend with similar passages, so a collage of those previous translations will yield a usable result.”); Lanier, You Are Not a Gadget New York: Alfred A. Knopf, 2010. (“Instead of people being treated as the sources of their creativity, commercial aggregation and abstraction sites presented anonymized fragments of creativity as products that might have fallen from the sky or been dug up from the ground, obscuring the true sources.”)
27. Lanier, Jaron. Who Owns the Future? New York: Simon & Schuster, 2013, at page 8.

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