Copyright Formalities: A Return to Registration?

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