Berne's Vanishing Ban On Formalities
- "The view that article 5(2) of Berne creates a complete ban on formalities is deeply and honestly held. It is nonetheless almost wholly irrelevant to the current debate about reformalization. The reason for that is straightforward. Recapturing many of the benefits of formalities does not require, and perhaps is not even best pursued by, reinstituting the sort of formalities that article 5(2) bans—that is, those that affect “the enjoyment and the exercise” of exclusive rights in copyrighted works.5 Rather, the sorts of formalities that occupy the center of the current debate, the so-called “new-style” formalities, are subtler. Unlike traditional formalities, noncompliance with new-style formalities does not prevent copyright from arising, cause existing copyrights to terminate, or make existing copyrights unenforceable in court. Rather, the various varieties of new-style formalities that have been proposed to date would work mostly by contracting the scope of infringement remedies available to a rightsholder who has failed to provide the ownership information required to comply with the formality. Traditional formalities work as bludgeons. New-style formalities work as nudges."
Author proposes a new-style formality in which:
- "owners of unregistered works would continue to recover actual damages as measured by the reasonable value of a license, but they would be ineligible to receive either disgorgement or preliminary or permanent injunctive relief [...] a liability rule rather than a property rule to unregistered works—that is, by limiting remedies for unauthorized use to actual damages, and eliminating the prospect both of injunctive relief and the award of the defendant’s profits, the formality would effectively permit use of a work without authorization, in return for a payment that would be measured by the value of a license had one been negotiated ex ante the use."
Rest of article explains that:
- "there is no provision in either Berne or TRIPS that bans this type of formality, either explicitly or implicitly."
Berne says nothing about remedies, which makes sense given basic division of right and remedy in law.
- "TRIPS does provide explicit rules regarding the availability of remedies. These rules, however, do not prohibit a formality for which noncompliance limits the availability of injunctions."
- "A no-injunctions formality is permissible under Berne and TRIPS but it is far from the only new-style formality that would be permissible. In general, any formality that focuses on varying available remedies can be defended as Berne- and TRIPS-compliant. This includes a formality that remits the owner of an unregistered work to some sort of fixed payment."
Theoretical and practical relevance:
Is it possible to make a "new style" formality which helps commons projects, which rely on gratis permission/lack of restriction?