A widely circulated strategy in the USA to avoid the cost of copyright registration is referred to as the “poor man’s copyright”. In the US, they still use an outdated “Copyright Office” to shuffle papers - something the rest of the world has done away with long ago thanks to the Berne Convention.

The “Poor Man’s Copyright” proposes that the creator send the work to himself in a sealed envelope by registered mail, using the postmark to establish the date. There is also a “Poor Man’s Patent”, where this method is used to ‘prove’ “first art”, or that you were the first.

For the rest of the world, this should work fine and hold up in court - if they abide by the Berne Convention. This technique has not been recognized by any United States court. The United States Copyright Office makes clear that the technique is no substitute for actual registration. The United Kingdom Intellectual Property Office discusses the technique, but does not recommend its use. There are now electronic archiving services which do the same, but to protect intellectual property in the USA, you must register with the copyright office or you cannot sue for damages and/or attorney’s fees.

The Berne Convention made copyright offices obsolete, but the US does not want to close theirs. Copyright attorneys - by and large - are also happy with this arrangement. To ask a copyright attorney if copyright law needs fixing is like asking a fox if the hole in the chicken-coop should be repaired.

The United States is a signatory to “The Berne Convention”, which requires its signatories to recognise the copyright of works of authors from other signatory countries (known as members of the Berne Union) in the same way it recognizes the copyright of its own nationals, regardless of where the intellectual property was originally created.

Copyright under the Berne Convention must be automatic; it is prohibited to require formal registration. The United States joined the Convention in 1988, and to this very day in the United States, you can only claim (sue for) statutory damages and attorney’s fees if your work was registered with the US Copyright office. It is normally enough to give “constructive notice” by adding the copyright symbol ©, the date, and the copyright holder’s name to the document. This requirement was in fact even removed and so it is usually enough to be able to demonstrate being first.

My questions:

• Why did the US sign the agreement if they had no intention of abiding by it?
• How can they continue to get away with this?

The US Copyright Office

The United States Copyright Office has a long and illustrious history, but remains a relic of a bygone era - when large bureaucracies were needed to register paper documents.

Most other countries in the world get along just fine without a copyright office, and in fact, authors are better protected than in the US - where you cannot sue if you did not register your copyright and pay an extortionate $45.00 fee (Now you can do it online for an extortionate $35.00.) [US Copyright Office fees]

Since you have three months to pay this fee and formally register your copyright, a typical blogger in the US who does not register each post (nobody does) can enjoy a 3 month effective copyright term in the USA. Compare this to the various time-frames in the EU - where creators of intellectual property enjoy copyright protection which lasts a guaranteed minimum of 50 years after their death! (See also global copyright durations.)

Just Another Tax

In the US, copyright fees are in fact, just another tax. One that writers and creators of intellectual property are not forced to pay in other countries. The Berne Convention provides adequate protection. The only thing one needs do, is prove that their creation was the first. An electronic archiving service could handle this just fine and could be built by a fresh college graduate in a week.

There is a huge organization which must be fed, since it is run by the government, it will never be shut down, its budget will continue to grow, it will develop new ‘products’ (taxes) and continue to flout the Berne Convention.

A Bureaucracy, Once Created - Can Never Be Dismantled

For the US to remove the requirement of Copyright Registration for persons wishing to collect damages and attorney fees from an infringement lawsuit - a totally unnecessary and bureaucratic step - it would be the end of the Copyright Office. This is an office which generates millions and millions of dollars and provides thousands of feather-bed jobs for bureaucrats who do basically nothing useful whatsoever.

Unfortunately, creators of intellectual property suffer from this unfortunate situation, since the status quo effectively has changed the term of protection for a US Copyright to 3 months. I will not file a copyright application for this blog entry, so you are free to steal it in the US - but you have to wait three months. It would take me 10 times longer to fill out the form, arrange the payment, send the payment to the copyright office through their website (which they only wanted to work with IE - I use FF) than it took me to write this article.

I live in Europe, so if you want to steal this blog post, you will have to wait until I am dead for at least 50 years… but if you are in the US, you are free to swipe it three months from today! Do me a favor, at least give me a backlink.

Copyright in the EU is different than in the United States - and unusually, much less rigidly controlled by the government. In the United States, there is an official Copyright Office which registers copyrights - unnecessarily so.

Even though the USA is a signatory to the Berne Convention whereby a work should be protected without such registration, nobody has ever won damages in the USA for infringement where a copyright was not filed with the copyright office according to their procedures.

In the United Kingdom and elsewhere in the EU, commercial services provide a registration facility where copies of work can be lodged to establish legal evidence of a copyright claim. In the UK, there are also requirements to file certain published works with the British Library and, on request, the five legal deposit libraries. This site will help those who wish to copyright their intellectual property in the European Union.

All of the countries of the European Union are signatories to the Berne Convention.