This paper is a contribution to a project on Copyright Law and the Public Interest. It asks what a reimagined copyright law might look like, if it were redesigned from the ground up around the public interest. As a topic, the (re)introduction of formalities into copyright law is particularly suitable for a thought experiment. A blank canvas seems necessary because the writing is otherwise on the wall, in the form of Art 5(2) of the Berne Convention: ‘The enjoyment and the exercise of these [Convention] rights shall not be subject to any formality’. While a Berne Union member remains free to impose formalities on its own nationals, the vast majority of countries do not do so. Despite this, the past decade has witnessed a resurgence of interest in the potential for formalities – such as registration, the recordal of transfers of title or a mandatory copyright notice requirement accompanying works – to ameliorate fundamental structural problems that otherwise plague copyright law.
More people have more rights over greater numbers of works (and for longer durations) than ever before. While Copyright regimes grant property rights, they don’t do a very good job of generating accessible information about the existence and ownership of such rights. When it comes to formalities, Copyright is therefore an outlier in comparison to the other categories of intellectual property and this paper (1) sets out the problems which formalities might address; (2) explores the range of options available for imposing formalities; (3) considers whether we should be careful what we wish for (i.e. the unintended consequences); (4) proposes a few re-imaginings of what a sensible formality-based copyright system might look like; and (5) concludes by inviting the audience to debate them and propose alternatives.
Convenors: Graeme Dinwoodie, Emily Hudson & Robert Pitkethly.
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