Tuesday, January 27, 2009

ICANN Copyright Registration? Yes We Can!

Professional photographer Dan Heller has written a very thoughtful and constructive piece about how the Copyright Office might incorporate ICANN-type concepts into the copyright registration process found here. I am a big fan of the Copyright Office in many ways. Unlike many, I usually see attempts to "privatize" government functions as a way to steal from taxpayers and undermine the professional civil service. For example, I think HMO's are simply criminal in structure, and I think that private prisons should be abolished immediately.

Heller makes powerful arguments that today's copyright system prices most photographers and certain content producers out of the market and is inefficient. At $35 or $45 a pop, and high recording fees for transfers, certain content creators simply opt out of the system. Photographers may register multiple images for one fee, but there are restrictions. With the phenomenon of user-generated content exploding, Heller points out another copyright constituency that is priced out, is opting out, and that the system was not built for.

As a litigator it has pained me to inform clients over and over that they can't get statutory damages. It is clear to me that approaches embracing new technology, recognizing the new scope of copyright itself, and harnessing the power of the internet need to be adopted to the commercial and consumer reality of the online experience. Heller is right about there being no reasonably effective remedies for the little guy out there.

If you could protect all of your creative output for, say, a reasonable monthly fee and make it easy to digitally track and monitor, wouldn't that be a great option?

Heller has sketched, in a provocative and powerful essay the outline of a new type of automated copyright registration system that certainly bears study. His selected model is the ICANN system, which I am not sure satisfies my desire to have one, central entity to be searched and act as a reputable register (if you have ever chased domain name hijackers who have taken your client's domain offshore you will understand my reluctance to endorse domain name registration as a flawless model).

There is also something attractive in the deposit system: you can deposit works and still have them unpublished and secret for practical purposes, but you have a secure government record that it is what you've claimed as yours, even if unpublished. I am not sure that an ICANN-type system could provide the type of physical custody and certainty that the US government provides.

I think that the Copyright Office would do well to give Heller's proposal some serious consideration and launch a pilot program, particular for groups like photographers. By providing careful oversight of an outsourced operation like the one Heller envisions, I think that the Copyright Office might find that more people could receive fair legal protections at a reduced cost and that more creators and users would be encouraged to be good copyright citizens.

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