Copyright Formalities: A Return to Registration?

In R Giblin and K Weatherall (eds), What if We Could Reimagine Copyright? (ANU Press, 2017) 213.

43 Pages Posted: 1 Mar 2017

See all articles by Dev Saif Gangjee

Dev Saif Gangjee

Faculty of Law, University of Oxford

Date Written: July 30, 2016

Abstract

Copyright law is an outlier. Unlike patent, trade mark or (with some qualifications) design protection, the recognition and enforcement of proprietary interests is automatic, arising upon creation. It is not conditioned upon the fulfilment of formalities. More specifically, Art 5(2) of the Berne Convention proscribes – to a large extent – the introduction of mandatory formalities. Responding to the invitation to reimagine copyright, this chapter conducts a thought experiment; one which is historically and empirically informed.

It considers whether mandatory or strongly incentivised registration would serve the public interest better than automatic copyright. To that end, section 2 defines formalities, and introduces the most common types historically associated with copyright law. The rationales for formalities are then mapped on to distinct public interest outcomes. Section 3 reviews the arguments both for and against the reintroduction of formalities. The concerns underlying article 5(2) of Berne would have to be addressed by any reform proposals. With this in mind, section 4 contains the principal substantive contribution of this chapter. It outlines what a mandatory copyright registration system at the national level might look like, drawing inductively upon existing studies of voluntary copyright registration as well as other IP and land registration systems. Section 5 concludes that, given the option, it would be unreasonable to continue with our present ‘automatic protection’ approach. Registration is worth reconsidering once again.

Keywords: copyright, registration, formalities, Berne Convention, intellectual property

Suggested Citation

Gangjee, Dev S., Copyright Formalities: A Return to Registration? (July 30, 2016). In R Giblin and K Weatherall (eds), What if We Could Reimagine Copyright? (ANU Press, 2017) 213.. Available at SSRN: https://ssrn.com/abstract=2923897

Dev S. Gangjee (Contact Author)

Faculty of Law, University of Oxford ( email )

Cowley Place
Oxford, OX4 1DY
United Kingdom

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