Economic Analysis of Copyright Notice: Tracing and Scope in the Digital Age

Intellectual Property and Copyright and Trademark

Article Snapshot


Peter Menell


Boston University Law Review, Vol. 96, Number 3, pp. 967, 2016


Decades ago, the rule that copyrighted works must include a formal copyright notice was eliminated. Today, digital technology enables authors and artists to reuse old works in new ones, but lack of formal copyright notice makes it hard for them to identify copyrighted works.

Policy Relevance

Requiring works to include copyright information would be practical and fair, and would encourage the creation of new works.

Main Points

  • Until the late nineteenth century, most nations required copyrighted works to include a formal copyright notice, as rights that affect the public ought to be knowable to the public.
  • As publishing spread around the world, notice requirements made it hard to enforce copyright across borders, as it was impractical for copyright owners to satisfy notice requirements abroad; ultimately, the Berne Convention prohibited formal notice requirements.
  • Digital technology makes it easy for artists to use old works in making new works, but this is risky, because they rarely know if the old work is copyrighted; a film maker making a documentary might hesitate to use old photographs found online without knowing who (if anyone) owns the copyright.
  • Ideally, a formal copyright notice would provide creators with four types of information:
    • Whether the work is copyrighted, and when the protection expires.
    • The owner of the copyright and his contact information.
    • The scope of protection.
    • Remedies for infringement.
  • Digital recognition technologies such as YouTube’s Content ID make it easy to link a copyrighted work to information about the work and its owner; this technology offers a framework for an inexpensive, universal copyright notice system.
  • Because copyright law is so complex, including information about the scope of the copyright in the notice is infeasible; reforms such as expanded fair use, compulsory licensing, or voluntary bargaining organizations would facilitate the creation of new works despite uncertainty about copyright scope.

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