More Than Just a Formality : Instant Authorship and Copyright's Opt-Out Future in the Digital Age

The digital age has forever changed the role of copyright in promoting the progress of science and the arts. The era of instant authorship has provided copyright to countless authors who are not motivated by copyright incentives. It has also made it impracticable for copyright to return to a system requiring author adherence to formalities, such as notice and registration. Though many intellectual property scholars today argue for “reformalizing” copyright, they fail to consider fully the consequences of shifting from the current opt-out copyright system to an opt-in regime. This Comment fills that gap by exploring how an opt-in regime would work in a world with countless authors. In particular, it details the inability of many authors to know at the time of creating an original work whether that work will be commercially successful, such that, if copyright did not automatically vest, it would be worth the time and cost to obtain protection. This Comment ultimately argues that an opt-in copyright system characterized by formalities would not scale in the era of instant authorship and that returning to such a regime would disincentivize authors who are motivated by the present copyright scheme. This Comment then concludes with a discussion of why an opt-out system that automatically grants rights to authors is supported by the different theories of the U.S. Constitution’s Copyright Clause