What options are available to protect one's copyright-protected work if one does not register it?

Question

In the United States, the US Copyright Office says that "registration is voluntary" and works are protected by copyright as soon as they are "created and fixed in a tangible form". However, this same page says that registration is necessary to bring a lawsuit for infringement of a US work and registration is a pre-requisite for receiving statutory damages and attorney's fees following litigation. The Copyright Claims Board also requires registration to start a claim. Both options - litigations in federal courts as well as claims at the Copyright Claims Board - require registration to proceed.

In cases where the infringer does not respond positively to valid requests from a work's creator, are there any options to enforce the protections afforded to the creator without registration? If so, what are these options? If not, what is the justification for the apparent contradiction if the only way(s) to enforce the creator's rights requires registration?

To clarify what I mean by "contradiction": If one looks across other rights that are widely held in the United States, such as the right to peaceably assemble or the right to a speedy and public trial, one does not have to take proactive steps. That is, when one believes their rights have been violated, they can turn to the courts and pay the associated fees, such as the ones outlined here or similar fees for local courts, and the cost of representation. However, the economic and moral rights protected by copyright law are somehow different in that one must pay twice - once (in relatively short order - 5 years after publication, registration is no longer prima facie evidence) proactively, and then again to initiate proceedings against those who have violated your rights. To the best of my knowledge, there are no other rights like this in the United States.

Answer 1

There are several options that can give effect to one's exclusive rights conferred by copyright, without requiring registration:

• demand letters;
• DMCA takedown notices (where the infringing copy is being hosted online by a third party);
• contractual obligations can incorporate reference to copyright status (e.g. "party X will not use any works to which party Y owns copyright");

These are just example circumstances where unregistered copyright can have meaning to people. I don't propose that that is a complete list.

Admittedly, I may not even understand your question, given that I do not see the contradiction you refer to.

But, very few legal rights are "enforceable" via self-help. Most require some formal involvement of the courts or the government for their vindication. These often require the bringing of a lawsuit including the payment of filing fees, etc. To bring an action in copyright requires an additional formality of registration. It is not usually thought of as a contradiction that the right to not be defamed cannot be vindicated without a lawsuit. It is no more so a contradiction that copyrights cannot be vindicated by court action without registration. It is just an additional formal step that is inserted between the existence of the right and a remedy against those who violate the right.

For an unregistered copyright, even when one is unable to presently enforce the right, others still have the duty to not infringe. If X infringe's Y's unregistered copyright at time t, Y can later register the copyright at time t+n and sue X for X's past infringement (although only for actual damages, not statutory damages). X's duty to not infringe always existed, and in that sense, Y always had the right (see Wesley Newcomb Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning" (1913) 23:1 Yale Law Journal 16).

If you don't want to call something a right until relief is provided by a court, then that is a completely fine alternative definition of a right, but then we are just differing over labels.

I see your later edits, and understand you are probably also asking why did Congress decide to restrict some of the copyright remedies to be conditioned on registration in this way. First, copyright protection (not just the ability to bring an action) was once completely conditioned on registration. It is actually a relaxation of the registration requirement to now only require registration prior to bringing an action. Many justifications for maintaining this incentive have been argued, but here are a few (from Dotan Oliar, Nathaniel Pattison & K. Powell, "Copyright Registrations: Who, What, When, Where, and Why" (2014) 92 Texas Law Review 2211):

• a registry facilitates licensing and increases the efficiency of various statutory licensing schemes
• a registry reduces the risk of unintended infringement
• a registry increases the realized value of intellectual property in mergers and acquisitions

Answer 2

Historical accident

The USA was a latecomer to the Berne Convention and had developed its own system of copyright in which registration and a copyright notice were prerequisites for copyright to exist at all. The Berne Convention in contrast requires copyright to be recognized at the moment of fixation.

When the US joined the treaty it came up with the halfway house system that it has today. Copyright exists at the moment of fixation but registration is required before taking legal action.