A Realist Approach To Copyright Law's Formalities

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Citation: Michael W. Carroll (2014/03/09) A Realist Approach To Copyright Law's Formalities. Berkeley Technology Law Journal (RSS)
Internet Archive Scholar (search for fulltext): A Realist Approach To Copyright Law's Formalities
Download: http://btlj.org/data/articles/28 3/1511-1536 Carroll 022414.pdf
Tagged: copyright (RSS), copyright formalities (RSS), berne convention (RSS)


Title means legal realist, in contrast to legal formalist.

"Realizing that Berne article 5(2) and TRIPS article 9(1) have removed formalities from public law, the realist perspective shifts the policy focus to how those subject to copyright regulation can create private substitutes for those public formalities. From this perspective, the space once occupied by a formalities system administered by public officials has been privatized rather than abandoned."
"Article argues that public officials have space to improve the functioning of formalities in the copyright system in two ways:(1) using the available flexibility within the existing international framework to increase the role of publicly administered formalities; and (2) recognizing the private formalities systems run by CMOs, as well as working to improve interoperability and transparency in these systems through a mixture of public/private cooperation and public regulation. On both fronts, public officials should consider the role of technical standards as a regulatory force in both public and private systems of formalities and should work to ensure that standards of decision making reflects public values."

First argues realist perspective allows for introduction of mandatory public formalities:

  • Reward based on economic rights requires transaction structure, implies formalities.
  • "formalist narrative overreads human rights obligations by confusing legal entitlements with options to obtain or exercise legal entitlements." [...] "right to vote is considered among the most central political rights that citizens of a democracy possess, and yet governments routinely require potential voters to comply with a formality—registration—before they may exercise or enjoy this right."
  • "authors of anti-formalities provisions responded to a situation in which authors and publishers faced overly cumbersome copyright formalities, operating in an increasingly international market for copyrighted works" [contrary to] "Attempts to treat the anti-formalities provisions of Berne as recognition of authors’ human rights rather than as a situationally pragmatic response to administrative difficulties"
  • "a dynamic interpretation of the Berne Convention would lead to the conclusion that, at least in countries with ready access to computers and the Internet, a mandatory notice or registration formality should not be read to affect an author’s ability to exercise or enjoy her rights under copyright."

Regulation of private formalities

"Privately-administered formalities systems are heterogeneous but fall roughly into three groups: (1) registries and related systems administered by organizations that either own rights under copyright or related rights or, more often, act as transactional agents for rightsholders; (2) third-party registries or copyright documentation services that do not solely rely upon input from rightsholders to gather and organize information about works of authorship and their rightsholders (e.g., YouTube’s Content ID registry); and (3) organizations that compete directly with public formalities systems to provide rightsholders with copyright documentation services, such as notice (e.g., watermarking), registration, or deposit."
"goal of improving effectiveness in formalities can best be achieved by increasing interoperability among formalities systems and by increasing their transparency.Transparency has two meanings here. One meaning is to make public much of the information held by private formalities systems.The second meaning is to increase the accountability of the internal operating procedures of those who administer private formalities systems. These subsidiary goals aim to supply informational liquidity to the market for transactions related to copyright-protected works."
"While promoting interoperability, public officials should seek to encourage innovation in the use of digital technologies to improve the functioning of copyright formalities systems.Using its convening authority, the government could bring together the most forward-thinking administrators to identify standards that best perform the functions a formalities system requires."
"public officials should seek to enter into partnerships with administrators of private formalities systems to achieve interoperability between public and private formalities systems."
"In sum, once it is recognized that formalities are alive and well in the copyright system through these systems of private formalities, a range of reasonable public responses as described above follows."

Theoretical and Practical Relevance

What about:

  • Relevance of open source and linked open data have to registry regulation -- mandates for as content of regulation?
  • Commons-based peer production/maintenance of provenance info, including rights?
  • Facilitating commons as goal, alongside or above market for transactions?