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Duur: 2006 - 2010
Auteur: S.J. van Gompel
Promotor:
P.B. Hugenholtz
Formalities in
Copyright Law: An Analysis of Their History, Rationales
and Possible Future,
Information Law Series 23, Alphen aan den
Rijn: Kluwer Law International 2011. Verkrijgbaar bij
Wolters Kluwer.
At present,
copyright is ‘automatic’. From the moment an
original work is created, the author enjoys all the
benefits that copyright protection entails, without
the need to complete a registration, deposit the
work, mark it with a copyright notice, or comply
with any other statutorily prescribed formality.
However, the digital revolution has caused a
paradigm shift in the way copyright-protected works
are created and consumed. Copyright law is now
facing significant challenges arising from the need
to establish legal certainty over copyright claims,
improve rights clearance, and enhance the free flow
of information. Inevitably, proposals to introduce
formalities in copyright law (or reintroduce them,
as the absence of formalities has not always been
the norm) have risen to prominence in legal debate.
This book examines whether reintroducing copyright
formalities is legally feasible. Based on a
comprehensive and thorough analysis of copyright
formalities, it sets out to establish the extent to
which the current copyright system allows for their
reintroduction. To this end, the author describes
the role and functions of formalities, revisits the
history of formalities at the national and
international levels, examines the scope of the
international prohibition on formalities, and
scrutinizes the rationales behind this prohibition,
including an in-depth examination of the validity of
the argument that copyright is a ‘natural right’ and
therefore should be protected independently of
formalities.
The author skilfully evaluates and contrasts the
conflicting theories according to which formalities,
on the one hand, add legal certainty to claims on
the ownership of property, and, on the other, hamper
individual authors from seeking adequate protection
for their works. This book makes an important
contribution to legal science by answering questions
that so far have been neglected or only marginally
addressed. To the degree that current copyright law
permits reintroducing formalities, the author posits
the specifications that will determine to a great
extent what role and functions they may eventually
fulfil: depending on the aims to be achieved,
lawmakers must choose which types of formalities
shall be imposed, and what their legal consequences
shall be. This book goes a long way towards
reinforcing the foundation for those decisions.
Zie ook :
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Formalities in the digital era: an obstacle or
opportunity?, in: L. Bently, U. Suthersanen & P.
Torremans (eds.), Global Copyright: Three Hundred
Years Since the Statute of Anne, from 1709 to Cyberspace,
Cheltenham: Edward Elgar 2010, p. 395-424.
This paper, which was
presented at the 2009 ALAI conference in London,
examines the possible reintroduction of copyright
formalities against the background of the challenges
that copyright law faces in the digital era. It does so
by contrasting the current calls for reintroducing
formalities with the legal-historical reasons for their
abolition. The paper concludes that, while, in the
pre-digital era, the objections against copyright
formalities were real, in the light of the changes
caused by the advent of digital technologies, there is
now sufficient reason to reconsider subjecting copyright
to formalities.
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Les formalités sont mortes, vive les formalités!
Copyright formalities and the reasons for their decline
in nineteenth century Europe, in: R. Deazley, M.
Kretschmer & L. Bently (eds.),
Privilege and Property:
Essays on the History of Copyright, Cambridge: Open Book
Publishers 2010, pp. 157-206.
Modern copyright law is
based on the premise that copyright originates from
original authorship and exists independently from
formalities. This was different in the past, when
copyright law was fully occupied with formalities. This
paper examines the development of copyright formalities
against the background of the upcoming national rights
thinking and some conceptual innovations in copyright
law in nineteenth century Europe (France, Germany, the
Netherlands and the UK). Among other things, this paper
concludes that, from a historical perspective,
formalities are not as incompatible with the natural
rights view as is commonly believed. This may cast new
light on the possible reintroduction of copyright
formalities, which is increasingly called for in the
current digital era.
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