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Duration: August 2006 - August 2010
Author: S.J. van Gompel
Supervisor:
P.B. Hugenholtz
Summary:
While, in nearly all countries, copyright
is independent from formalities, in the last decade, calls
for reintroducing copyright formalities have been increasingly
voiced. The reason is that formalities may be an answer to a number
of challenges that copyright is facing in the current digital era. Formalities
are said to provide a way to create legal certainty on
copyright claims, facilitate rights clearance and enhance the free
flow of information. However, opponents articulate
that reintroducing formalities in copyright law is inappropriate. They argue
that copyright is a ’natural right’ that is born automatically
with the creation of a work. Moreover, they maintain that because
of the international prohibition on formalities in Article
5(2) of the Berne Convention (as incorporated by reference
in the TRIPS Agreement and WIPO Copyright Treaty), reinstating
formalities in copyright law is virtually impossible or highly unattractive.
This project contributes to the present debate by investigating,
from a legal-theoretical perspective, how much room current national
and international copyright law truly leaves for reintroducing formalities.
First, it tests the hypothesis that formalities may play a useful
role in addressing the challenges that copyright is facing today by studying
the role and functions of formalities. Then, it examines
the reasons for the abolition of formalities in national copyright law and
the prohibition on formalities in international copyright law. To
this end, it conducts an historical analysis of copyright formalities
at the national level (the Netherlands, Germany, France, the UK
and the USA) and the international level. Next, it explores how much room the substantive legal framework of the international
copyright treaties leaves for a reintroduction of copyright formalities. Finally, it examines the validity of the argument that copyright
cannot be subject to formalities because it is a natural right and therefore
ought to be protected automatically upon the creation of an
original work.
Presentations:
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'Formalities in the digital era: an
obstacle or opportunity?', ALAI congress From 1710 to Cyberspace:
Celebrating 300 years of copyright and looking to its future, London:
Royal Institute of British Architects, 14-17 June 2009.
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'Les formalités sont mortes, vive
les formalités! Copyright formalities in nineteenth century Europe and their
significance for current discourse', Launch conference: 'Primary Sources on
Copyright (1450-1900)', London: Stationers' Hall, 19-20 March 2008.
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