The US Experience with Copyright Formalities: A Love/Hate Relationship

Abstract

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. Perhaps of most practical importance today, formalities predicate to the existence or enforcement of copyright can serve to shield large copyright owners who routinely comply with formalities from the infringement claims of smaller copyright owners, particularly individual authors, who may lack the information or resources systematically to register and deposit their works.This article will first define “formalities,” and then will consider their conceptual foundations. Next, it will examine the U.S. experience with formalities, from the first copyright statute of 1790 to the present. Finally, it will consider whether and how the beneficial, information-providing role of formalities might be achieved, without engendering forfeitures of protection or posing practical impediments to meaningful enforcement of copyright.