Re: Aphorisms and Copyright

On Wed, 26 Aug 1998, Bob Stock <bstock[_at_]ucla.edu> wrote:
>
> On 8/24/98, Terry Carroll <carroll[_at_]tjc.com> wrote:
> >
> > To be clear, though, although the Copyright Office regulation is worded
> > so that it looks like the Office is making a statement about what
> > qualifies for copyright subject matter, in fact, the Office has no
> > jurisdiction to issue regulations that delineate the scope of copyright
> > subject matter. 202.1 regulates what is registerable, not what is
> > copyrightable.
>
> How come? Not saying you're wrong, just how did you get there?

It starts with the fact that copyright subsists without any requirement to regisr the copyright or have any other involvement with the Copyright Office. The Office does not provide any substantive right; it's an adminstrative office of record.

The requirements for copyright are set out in the statute, with no provision for the Office to alter them. In contrast to, say, the Patent Act, which has a lot of detail about the role of the PTO in determining the patentability of a particular invention, the statutory role of the CO is pretty narrow. They're "administrative functions and duties" under Title 17 (s. 701(a)). The CO is required to register the work after it determines it's subject to copyright (s. 410(a))-- not make a decision about what that subject is; if an applicant is refused registration, he's not refused copyright -- he can go ahead and sue under the copyright without the prima facie evidentiary benefits of the registration (s. 411(a)). He's still even eligible for statutory damages and attorneys' fees, since 410(d) makes the registration date retroactive to the date of receipt of materials by the CO if registration is denied but a court subsequently finds them to be subject to copyright.

The Copyright Office is primarily an office of record, not an office that grants rights.

--
Terry Carroll       |    
Santa Clara, CA     |    
carroll[_at_]tjc.com     |       
Modell delendus est |