“With Untired Spirits and Formal Constancy”: Berne Compatibility of Formal Declaratory Measures to Enhance Copyright Title-Searching
Citation: Jane C. Ginsburg (2014/03/09) “With Untired Spirits and Formal Constancy”: Berne Compatibility of Formal Declaratory Measures to Enhance Copyright Title-Searching. Berkeley Technology Law Journal (RSS)
Internet Archive Scholar (search for fulltext): “With Untired Spirits and Formal Constancy”: Berne Compatibility of Formal Declaratory Measures to Enhance Copyright Title-Searching
Download: http://btlj.org/data/articles/28 3/1583-1622 Ginsburg 030314.pdf
Tagged: copyright (RSS), copyright formalities (RSS), berne convention (RSS)
Summary
Formalities for injunctive relief: no
"It has been suggested that Berne does not in fact require member states to include injunctive relief within their remedial arsenals, and that member states might therefore condition that remedy on compliance with declaratory measures, leaving undeclaring authors with some form of equitable remuneration in lieu of injunctions.36This contention ignores a great deal, notably copyright history, the text of the Berne Convention, and the explicit requirement of the Agreement on Trade Related Aspects of Intellectual Property (“TRIPS”) that member states provide injunctive relief from copyright infringement. First, Berne’s delegation to member states’ laws to provide the means of redress occurred against a background of widespread (probably universal) domestic provision of injunctive relief. [...] And before copyright, sixteenth-century papal printing privileges systematically charged the executing magistrates to confiscate books printed, sold, or imported without the author’s or publisher’s permission. [...] Second, while Berne does not specify remedies, it does impose detailed conditions on the availability of compulsory licenses. A member state may not substitute an equitable compensation remedy for actual damages or injunctive relief unless, with respect to the reproduction right, the remedy passes the “three-step test” or, with respect to certain communications to the public, meets the criteria of article 11bis(2). [...] Finally, even if Berne did not presume the default remedy of injunctive relief, TRIPS clearly obliges member states to provide for injunctions."
cf. Berne's Vanishing Ban On Formalities
Required formalities for "Berne-plus" remedies: no
"In general, the argument holds that remedies that exceed the protections mandated by international instruments are not subject to the Berne minima no-formalities rule. [...] Berne neither addresses nor, arguably, assumes availability of statutory damages and attorney’s fees; TRIPS includes these measures among its specified remedies, but it does not require member states to provide them. [...] Berne- and TRIPS-compatibility, however, should turn on assessment whether the “plus” remedies are in fact extra frills, or instead are necessary to effective enforcement of copyright. [...] The Berne-plus remedies argument thus rests on a fundamental fallacy. Article 5(2) does not distinguish between traditional or basic remedies and additional, unusual, or new remedies: all remedies come within “the means of redress.” Under this reading, there is no such thing as a Berne-plus remedy, and therefore no basis to impose formalities on the availability of some remedies but not others."
Required formalities for > Berne minimum term: yes
"member states might institute mandatory renewal obligations after the lapse of the Berne minimum term. Thus, a member state with a life-plus-seventy term might condition domestic and foreign authors’ enjoyment of the extra twenty years on a renewal filing."
Required formalities for transfer recordation: yes
"member states may apply not only carrots but also sticks to encourage compliance with ownership-related formal or declaratory obligations, by making the validity of a transfer of rights contingent on fulfilling those obligations."
But a good thing? Devil in implementation details.
Conclusion
"Were rights-clearance no longer to impose high transactions costs, the remaining impetus for reformalizing copyright would plainly emerge: for copyright reformalizers, “new-style” or otherwise, the fault lies not in copyright’s alleged unmanageability, but in the current contours of copyright itself."
