Reform(aliz)ing Copyright for the Internet Age—A Conference Recap

By TAP Guest Blogger

Posted on May 8, 2013


This conference summary is written by Patrick Goold.

From April 18th to 19th, 2013, the Berkeley Center for Law & Technology hosted a conference entitled “Reform(aliz)ing Copyright for the Internet Age.” The conference attracted an international group of IP academics and practitioners to debate the merits of introducing legal formalities to copyright law.

Traditionally nations required authors to comply with various legal formalities in order to obtain copyright in a literary or artistic work. These formalities were varied in nature. Some common examples include: a requirement that the author register the work with a government body; a requirement that the author attach copyright information to their work; a requirement that the author renew their copyright after a number of years; and a requirement that the author record subsequent transfers of the copyright. This situation began to change in 1908 when revisions were made to the Berne Convention (the leading international copyright treaty) that prohibited member states from conditioning copyright upon formalities. Instead, copyright now exists immediately upon the creation of an original work. However, this has subsequently caused a problem with rights clearance. Without a comprehensive registry of copyrights, it is difficult to know whether a work is copyrighted and who is the right holder. It is therefore challenging for users to locate rights holders and obtain a license. This problem has exacerbated as technology has rapidly increased the number of copyrightable works created by society. The question is whether re-introducing formalities to the system would aid rights-clearance.

The conference began with a discussion on why international copyright law limited the use of formalities. This largely was the result of theoretical concerns. The Berne Convention was heavily influenced by natural rights philosophy. The drafters believed the author has an innate right to control his creation. Conditioning copyright upon formalities therefore interferes with the author’s natural right over the work. But practical concerns also required renouncing formalities. Prior to the no-formalities rule, authors would have to comply with burdensome formalities in every nation in which they desired copyright protection. In addition, these domestic formalities were often complicated and tended to penalize unwary authors who were not fully aware of how to comply with them. On the other hand, it is unclear whether these practical issues are still problematic today. For example, digital systems could be employed to make registration simple and effective in multiple jurisdictions.

The discussion then turned to regimes other than copyright. Many other legal systems employ formalities. Real property is one such example. The vast majority of nations require title claims in land be registered. Equally, other intellectual property regimes, for example patents and most European trademarks, also require registration. In these areas, formalities serve two important functions. Firstly, they provide a body of ownership information that others can consult. Secondly, they reduce the number of ownership claims. As registration requires a fee payment, only people who truly desire legal protection will register their claims. This helps filter unnecessary rights out of the system. If registration were required in copyright, it not only could aid rights-clearance, but also reduce the scope of copyright, as authors would not register copyright in low-value works.

Given the potential advantages of formalities, the second morning focused on the Berne Convention to see what measures could be adopted without breaching the international law. Although the treaty says that the “enjoyment and exercise of copyright shall not be subject to any formalities,” the law is more flexible than many have appreciated. Firstly, this provision only applies to a member state’s treatment of foreign authors. It is still possible for states to require domestic authors to comply with formalities. Secondly, the Berne Convention only establishes a minimum group of rights that arise automatically. Member states may provide authors with additional rights beyond Berne’s protection. Member states may condition these extra-rights upon formalities. For example, the Berne Convention requires that authors automatically have effective remedies against copyright infringement. Therefore formalities must not be required in order to receive a basic package of remedies such as actual damages. But it is arguably not inconsistent for member states to condition extra remedies, such as statutory damages and attorney fees, upon formality compliance. In a similar vein, Professor Chris Sprigman argued that injunctions could be denied when authors fail to comply with formalities. In addition, Professor Jane Ginsburg suggests that downstream transferees could be required to register their title. Failure to do so would result in them receiving only a non-exclusive right in the work.

The US Register of Copyrights, Ms. Maria Pallante, delivered the keynote speech. Ms. Pallante stated that the Copyright Office was currently looking at the issue of formalities and was particularly interested in registration of works and recordation of subsequent transfers. Regarding the former, Ms. Pallante acknowledged that the current copyright term of the author’s life plus 70 years is arguably too long. As time progresses, it becomes even more difficult for users to locate rights holders and clear rights. Shortening term for some works may therefore aid the flow of information. As the Berne Convention only requires the automatic protection of copyright for the author’s life plus 50 years, Ms. Pallante suggested that authors face a registration requirement in order to receive protection for the final 20 years of the current term. In relation to the latter, Ms. Pallante echoed Professor Jane Ginsburg’s comments that downstream transferees should record the transfer and their new interest in the work.

For more information on these issues, please visit the conference homepage.

Patrick Goold is the Microsoft Research Fellow at the Berkeley Center for Law & Technology at UC Berkeley School of Law.