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294 INTRODUCTION TO COPYRIGHT: THEORY & HISTORY
then eliminated them on March 1, 1989 when it officially joined the Berne Convention,
which requires that rights “shall not be subject to any formality.” (Like many
international IP treaties, the Berne Convention provides for both minimum standards and
“national treatment,” meaning that signatories must grant nationals from other
participating countries the same rights as they give to their own nationals. Whether the
US is currently in compliance with all aspects of the Berne Convention is the subject of
continuing debate, and something you may explore in courses on international
intellectual property.) Aside from adhering with Berne, another reason that the US
removed formalities involved practical and policy concerns. Authors who were
unfamiliar or unable to comply with formalities might unwittingly forfeit protection;
automatic copyright ensured that this would not happen.
In 1998, Congress amended the Copyright Act by passing the Digital Millennium
Copyright Act (“DMCA”). Among its key features are new legal protections for
“technological measures” that control access to copyrighted works, and safe harbors for
providers of a variety of online services, including internet access, hosting, and linking.
The DMCA will be explored in more detail in subsequent chapters.
Copyright Expansions and Policy
Take a moment to review the copyright history briefly sketched above, and
consider the way that copyright has expanded over time in response to technological and
market developments. The original copyright act from 1790 only governed the printing,
publishing, and vending of books, maps, and charts. In 1850, even though musical
compositions had recently been added to this list, your school orchestra could freely
perform any composition because public performances were not reserved to the
copyright holder. Nor were any derivative works rights—as a follow-on creator, you
could translate books into other languages, or adapt them for theater, or build upon them
in your own work.
The term of protection has lengthened markedly in recent years. Until 1978, it
lasted for a possible total of 56 years—28 years from the date of publication, plus the
option to renew for another 28 years—with the majority of works entering the public
domain after the first 28-year term (studies put the rate of non-renewal for all works at
85%, and for books alone at 93%). Now the term is 70 years after the death of the author,
and 95 years after publication for corporate works. Because this span outlasts the
economic viability of most works, only a small percentage of copyrighted works benefits
from this longer term; a Congressional study suggested that only 2 percent of works
between 55 and 75 years old continue to retain commercial value. As time goes on, an
increasing amount of material is out of print, but still in copyright. Many libraries,
creators, and others are prevented from using this material because the expanded term,
along with the elimination of formalities, has made it especially difficult to find the rights
holders. The result is a growing corpus of “orphan works”—those whose authors cannot
be identified or located, keeping them off limits to users who are seeking permission. As
the Copyright Office has explained: “For good faith users, orphan works are a frustration,
a liability risk, and a major cause of gridlock in the digital marketplace. . . . This outcome
is difficult if not impossible to reconcile with the objectives of the copyright system and
may unduly restrict access to millions of works that might otherwise be available to the
public.” This is the flip-side of the argument Samuel Clemens made in 1906. He assumed
that there would be no loss to the public, because—while the term was extended—the
demand for the book would not be. Thus no one would lose. Do you agree after reading