The policy of protecting authors from their own mistakes reached the point of reductio ad absurdum on March 1, 1989, the effective date of the Berne Convention Implementation Act (“BCIA”).[1] In the name of bringing the United States into compliance with the Berne Convention’s “no formalities” mandate,[2] Congress made compliance with formalities not only nonessential, but irrelevant. The language of the key statutory provision on notice of copyright was changed from the mandatory “shall” to the permissive “may,”[3] and the provision allowing authors to cure defective formalities was amended to have purely retrospective application.[4] Thus, although defects in formalities for works published before March 1, 1989 can still result in forfeiture of copyright if not cured,[5] later-published works are at no risk of forfeiting copyright protection due to noncompliance with statutory formalities.[6] The conditional protections given to authors under the Copyright Act of 1976 against unintentional, inadvertent losses of their rights had become absolute.[7]
As a result, there is a colorable argument that copyright legislation in the United States has gradually converted copyright from a selectable privilege to an indefeasible entitlement.[8] That argument, and the presumption of strong rights for authors upon which it rests, may influence courts’ willingness to entertain arguments that an open-content licensor should be disempowered to terminate her grant of rights under a license and recapture ownership of copyright in the work.[9] To complete the picture, however, it
- ↑ Pub. L. No. 100-568, § 13(a), 102 Stat. 2853, 2861 (1988) (codified at note following 17 U.S.C. § 101 (2006)).
- ↑ Id. § 2(3), 102 Stat. at 2853 (declaring that “[t]he amendments made by this Act, together with [existing law] . . . satisfy the obligations of the United States in adhering to the Berne Convention and no further rights or interests shall be recognized or created for that purpose.”); Convention for the Protection of Literary and Artistic Works, § 5(2), opened for signature Sept. 9, 1886, 6 U.S.T. 2731 (“[t]he enjoyment and exercise of [copyright] rights shall not be subject to any formality”).
- ↑ Pub. L . No. 100-568, § 7(a)(2), 102 Stat. at 2857 (codified at 17 U.S.C. § 401(a)); id. § 7(b)(2), 102 Stat. at 2858 (codified at 17 U.S.C. § 402(a)).
- ↑ Id. § 7(e)(1), 102 Stat. at 2858 (codified at 17 U.S.C. § 405(a)).
- ↑ See Norma Ribbon & Trimming, Inc. v. Little, 51 F.3d 45, 48 (5th Cir. 1995).
- ↑ See Morgan v. Hawthorne Homes, Inc., 2009 WL 1010476, at *7 (W.D. Pa. Apr. 14, 2009) (“Each of the eight plans at issue were published after March of 1989, and therefore any omission of notice does not result in forfeiture and provides no basis for finding that Plaintiff does not have a valid copyright in the eight plans.”); Sadhu Singh Hamdad Trust v. Ajit Newspaper Adver., Mktg., & Commc’ns, Inc., 503 F. Supp. 2d 577, 587 n.15 (E.D.N.Y. 2007) (“works first published after March 1, 1989 need not bear a notice of copyright to attain copyright protection”); Innovative Networks, Inc. v. Satellite Airlines Ticketing Ctrs., Inc., 871 F. Supp. 709, 720 (S.D.N.Y. 1995) (“affixing notice is no longer mandatory for works first published after March 1, 1989”).
- ↑ See Tom W. Bell, Escape from Copyright: Market Success vs. Statutory Failure in the Protection of Expressive Works, 69 U. Cin. L. Rev. 741, 743–44 (2001) (“Each new version of the Copyright Act has awarded longer, broader, and more powerful legal protection to expressive works.” (footnotes omitted)).
- ↑ See id. at 742 (“Copyright law, originally excused as a necessary evil, now threatens to become an inescapable burden.” (footnotes omitted)).
- ↑ See infra Part IV.A.
