2013 Symposium: “With Untired Spirits and Formal Constancy”: Berne-Compatibility of Formal Declaratory Measures to Enhance Title-Searching
This is a summary of Professor Ginsburg’s topic of discussion and forthcoming article:
Copyright formalities are back in fashion, but their acolytes have divergent objectives. While some celebrate formalities’ confiscatory consequences and would enlist them to populate the public domain, others would rather populate the public record. Declaratory obligations like notice, registration and recordation inform the public of the author’s claims and, by facilitating rights-clearance, help the author disseminate and derive compensation from her work.
This paper addresses the Berne Convention’s prohibition of imposing “formalities” on the “enjoyment or exercise” of copyright, and the compatibility with that cornerstone norm of declaratory measures to enhance title-searching. Voluntary provision of title-searching information on a public register of works and transfers of rights is fully consistent with Berne, and should be encouraged. But may a member State impose sanctions or disabilities on foreign authors for failure to supply that information?
The first Part of this paper establishes that “formalities” prerequisite to the initial attachment or persistence of protection, or limiting the scope of minimum rights or the availability of minimum remedies, violate the norms of Berne and subsequent multilateral instruments. And while it may be permissible to condition “Berne+” subject matter protection, rights, or remedies on compliance with declaratory measures, that path risks descending into controversies of characterization and line-drawing.
The second Part of this paper suggests imposing declaratory measures going to ownership of rights under copyright as an alternative approach. Because the Berne Convention generally does not address questions of copyright ownership, conditions on who may enjoy or exercise rights—including sanctions for failing to provide information about transfers of rights—should be Berne-compatible. Thus, the paper proposes making the validity of copyright transfer depend on the transferee’s recordation with the Copyright Office of “a note or memorandum of the transfer” containing sufficient information to permit third parties to ascertain who owns what rights in the work. The paper concludes by identifying and attempting to resolve practical problems that such an obligation might engender.