This is a summary of Professor Gervais’s topic of discussion and forthcoming article:
The policy that copyright protection vests as soon as a work becomes fixed in a tangible medium has been a feature of American copyright jurisprudence for the past thirty-seven years. Nonetheless, there are many voices suggesting a return to a formalities-based copyright system. They make many valid points. First, there is little certainty regarding the ownership and terms-of-protection of creative works. Second, formalities are required to ensure that only those works our system seeks to incentivize receive protection. Third, in this digital age, compliance with formalities is needed more than ever due to the vast number of works being created and published. Fourth and finally, the ease of compliance in the digital environment (online registration, etc.) makes formalities much less burdensome.
Formality-free copyright was born out of necessity; it was required in order to assure global protection of copyrighted works in a time before the international harmonization of formalities was feasible. However, advocates of the current system point out that formality-free copyright was not only a means to this end. It has critical benefits. First, the message of incentivizing creativity is simplified. Second, providing protection to all works prevents publishers and other content professionals from being able to sidestep professional creators by utilizing instead the unprotected works of amateurs, as American publishers had with English literature before copyright protection was extended to foreign works. Put differently, automatic copyright protection allows authors of all stations to create with confidence that their works will not be appropriated or exploited in a manner injurious to them.
International law also plays a role in determining the fate of formalities. Even if one were to conclude that the benefits of formality-free copyright are outweighed by the benefits of a copyright system with reinvigorated formalities, a rule prohibiting formalities as a condition on the existence or exercise of copyright is enshrined in both the Berne Convention and the TRIPS Agreement. Moreover, the re-introduction of formalities in the United States could have a disproportionate impact on authors in developing nations.
Is there a better way forward? To address the last point, one could reduce the complexity of the copyright registration process (possibly by eliminating the determination of copyrightability as a component of that process) and the related costs (to zero for authors in least-developed and a substantial discount for those in developing nations countries). However, the main suggestion of this paper is to focus on recordation of transfers as a pre-condition to a transferee’s entitlement to bring lawsuits and obtain an award of statutory damages.