Can Formalities Save the Public Domain? Reconsidering Formalities for the 2010s

Abstract

Many of the recent calls to reintroduce formalities in copyright, have focused on its potential for restoring and enhancing the public domain. Formalities advocates claim that shifting back to an opt-in regime, where copyright protection is contingent upon satisfying certain formalities, would increase the number of works in which copyright is not affirmatively claimed. This position overlooks, however, the way our creative landscape has been shaken by the digital revolution. Digital technology has transformed the way we create, share, and enjoy cultural works, bringing users to the forefront of creative processes and facilitating new types of collaborative production. The rise of online intermediaries and the growing role of online platforms are also shaping the way we generate, share, and use copyrighted materials. These transformations are not only changing the economics of the cultural environment, they are also affecting political rights, social structures, access to knowledge, and freedom. Paying more attention to the potential effect of formalities on user-generated content (“UGC”), collaborative production, and the role of mega-platforms in implementing a formalities regime might help us imagine the possibilities and risks in the digital ecosystem and design the legal tools that are necessary to align the law with the digital era.The Article revisits some of the arguments supporting formalities as a vehicle for promoting the public domain in the 2010s, and offers some insights on the policy implications.