What’s wrong with copyright law and how can we make it better?

reformcopyrightCC0Here are a few criticisms of U.S. copyright law and suggestions for how the system could be improved.

  • Copyright small claims court: When a photographer finds that their photo has been used without their permission, there is currently no easy way to get a judgment for a small amount in damages. The U.S. Copyright Office issued a report to Congress in 2013 recommending the establishment of an administrative tribunal that could resolve copyright claims of $30,000 or less, and in 2016 an Obama administration task force called for a Copyright Small Claims Court, but no such alternative has yet been established. However, critics have argued that such a court could become swamped with copyright trolls unless safeguards are in place.
  • Fighting copyfraud: Many creators have complained that unwarranted DMCA takedown notices have proliferated, which has a chilling effect on a vibrant fair use culture. In one attempt to remedy the situation, fair use activists have called for penalties for increased penalties and enforcement for false copyright claims.
  • Balance of formalities:  In most countries, copyright formalities have been largely eliminated, and there is not an elaborate registration process. In the U.S., copyright is automatic as soon as the work is fixed in a tangible medium (such as when the shutter button is pressed), and some formalities such as the notice requirement have been disposed of. (The international Berne Convention prohibits imposing formalities on copyright protection.) However, registration is still a prerequisite to filing an infringement lawsuit, and timely registration is a prerequisite to obtaining statutory damages and attorney’s fees. There is some debate about whether the U.S. has found the appropriate balance in formalities requirements. While dropping formalities makes it easier for creators to protect their rights, some argue that a lack of formalities makes it too difficult for remixers to know whether they can build upon the creative works of others.[1]
  1. For example, see Lawrence Lessig, Free Culture, at 288.
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