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Let’s Make Copyright Opt-OUT

If you oppose IP and don’t want a patent–just don’t apply. Unfortunately, someone else might independently invent the same thing, patent it, and shut you down, since your having invented it first, or independently invented it, is no defense. So, you might also want to lower your knickers and reveal your idea publicly, to lower the chance someone else can patent it (this is called defensive patent publishing).1

But if you don’t want copyright, you’re out of luck. Under the current law, copyright is received automatically. Contrary to popular wisdom, you don’t “copyright” something. It’s not a verb. You don’t need to put a copyright notice on your work. You don’t need to register it. It’s automatic. And there’s nothing you can do about it. (See “Copyright Is Very Sticky!“) This makes it often impossible to know who the owner of a given work is or who to approach to ask permission; it contributes to the “orphan works” problem as well–where older works still apparently under copyright fall into obscurity because the copyright owner is unknown or cannot be found for permission to republish.

Thus, some of us would prefer a return to the older law.2  Previously US law required a copyright notice and even registration to obtain copyright. But the US acceded to the Berne Convention in 1989, which forbids such “formalities,” making copyright protection automatic. The US is therefore unable to revise copyright law to make it “opt-in” instead of opt-out, because this would violate international obligations.

But we do not even have an opt-out system, since, as noted, copyright is automatic, and there is no way to get rid of it. Snide commentators sometimes say, “if you are against IP why do you copyright your works?” or “why don’t you just waive your rights?” Well we don’t copyright our works–your system does. And your system does not allow us to waive our rights. There is no way to make a copyright-protected work public domain. The closest thing to it is CC0, but this cannot “guarantee a complete relinquishment of all copyright and database rights in every jurisdiction”.

So why not reform copyright law to at least legalize creative-commons type licenses, including CC0–let us opt out if we want to!


  1. See Google’s Defensive Patent Acquisition; Prior User Rights and Patent Reform; Jefferson on Anonymous Defensive Patent Publishing; Defensive Patent Publishing. []
  2. See my Reducing the Cost of IP Law, proposing copyright law be reformed to “Require active registration and periodic re-registration (for a modest fee) and copyright notice to maintain copyright”. []
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To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.